the true conservative:

[And the Federal Courts were and are the best avenue to seek protection of individual rights.]

What about our most important right of all: The right to direct our government via the democratic process?

What about it? Judges are appointed by the President (an elected official) with the advice and consent of the Senate (an elected body). They are hardly immune from the democratic process.

Oh come now. We vote them in one time, then for the next forty years they get to do whatever they feel like without ever facing any voters again, and that's the democratic process at work?

Don't think so.

Oh come now. We vote them in one time, then for the next forty years they get to do whatever they feel like without ever facing any voters again, and that's the democratic process at work?

Don't think so.

Um, yes, that is EXACTLY the "democratic process" as outlined by the Constitution itself, the document you would like to see so ruthlessly followed! To remind you--the point of the INDEPENDANT, NOT DIRECTLY ELECTED JUDICIARY is to provide checks to the other branches by a group that is not beholden to the whims of the electorate, they are only beholden to the Constitution itself. And, it's function is to interpret the laws of the land to determine whether they fit into the constitutional framework. That's what they do. The problem for folks like you comes when they don't interpret laws in a way that you like.

the true conservative:

Oh come now. We vote them in one time, then for the next forty years they get to do whatever they feel like without ever facing any voters again, and that's the democratic process at work?

Don't think so.

They don't get to do "whatever they feel like." That's horseshit.

Article III judges serve "during good behavior." Judges can, and have been, removed from office for their poor conduct (google, for example, "Walter Nixon"). When they are so impeached, it's by Congress, and the courts will refuse to even consider whether the impeachment was proper - it's entirely in the hands of the elected officials.

The position of Art. I judges is even more tenuous - not only do they often serve (by statute, rather than under the Constitution) during good behavior, they're often under term limits as well.

And as for electing judges - well, in most states, judges are elected. Look how well that's turned out. There are many fine state court judges, but on the whole, the quality of the federal judiciary is far higher.

Oh come on, TexasPete.

First of all, becomming a lawyer doesn't magically change your way of thinking into nonsense.

Second, you really don't know what you're talking about. Read the Constitution then tell me whether the commerce clause should apply to channels of commerce and which ones. Tell me whether the privileges and immunities clause of the 14th should cover women who move from one state to the next only to find they get reduced welfare benefits. Even better, tell me whether states should be forced to afford every privilege to members of every other state. If I move from Texas to Alaska, should Alaska allow me to to get a resident hunting license immediately?

All that has to be answered by the Constitution and constitutional history. All of it has to be answered by intense critical analysis. You're right that it doesn't take a lawyer to do this, but anyone who thinks that the meanings of the document are "pretty clear" as applied in today's contexts, just doesn't read critically enough.

Third, interpreting the constitution is only part of what the Supreme Court does. It also had appellate review over state courts and federal courts. That means that it certainly helps the members of the court are lawyers themselves because they have to determine law.

Frankly, I don't think you know what a lawyer does.

"And as for electing judges - well, in most states, judges are elected. Look how well that's turned out. There are many fine state court judges, but on the whole, the quality of the federal judiciary is far higher."

Amen Brother Jon.

The Civil Rights protestors did not go to State Court to seek protection because, quite frankly, the elected judges in the state system were more of a problem than a likely solution. Had Alabama's elected judges been left with the decision whether to integrate our public schools, I assure you they would have parroted our esteemed Guvnor: "Integration today, integration tumurruh, and integration fow-evah."

The independent judiciary made the tough decision precisely because they did not have to answer to the majority.

What about our most important right of all: The right to direct our government via the democratic process?

Part of the problem here is that you seem to be operating under some confusion about the system of government the founders attempted to create via the Constitution. We emphatically don't live in a true democracy.

The founders were struggling to come up with a system of government balanced against two disparate forms of tyranny: the tyranny of despots on the one hand and the tyranny of mobs on the other. The compromise that was decided upon was that rule would be decentralized but concentrated in a Federal, tripartite, quasi-oligarchical form. (The oligarchical aspects of our government were greatly reduced by Amend. XVII.)

Under the Constitution as originally written, "our" ability to "direct" our government is filtered in a number of ways: our State officials elect the Senate and choose the electors for President, the Federal officials we directly elect to the House are members of an inferior legislative body, and judicial officials are selected by the indirectly-elected President subject to the advice and consent of the indirectly-elected Senate. The machinery is designed to be operated by remote pulleys and rods so that neither a mad crowd nor a would-be monarch can muck up the works with greasy fingers.

Seen in that light, the lifetime appointment of judicial officials is a benefit, not a curse: judges and justices can operate without fear of being at the whim of electorates or elected officials. In other words, the judiciary is intentionally an anti-majoritarian body that, in theory at least, can protect minorities or serve as a braking mechanism against heedless changes at the majority's whim. (Whether this is the case in practice, of course, is another matter.)

Frankly, whenever people complain about "judicial activism," it's inevitably code for "striking down or enforcing policies I don't agree with and my opinion ought to control because I'm a taxpayer and I vote and I'm right and I know it." Such pleas are often followed by an appeal to "democracy" -- probably because democracy is a nice idea that flatters our egos. The notion that maybe democracy can be a bad thing and that the political geniuses who wrote the Constitution knew it doesn't ever seem to enter into it.

We live in a republic with democratic features and institutions. It's not a bad compromise, but only because there are anti-majoritarian controls to keep a riot from breaking out.

Pete, you can't even interpret English well enough to use the correct version of 'whether' or spell 'ALARMS'. Communication is never as straightforward as just-so oversimplifiers want to make it. Try that line about the Constitution rarely needing interpretation on either side of argument over the right to bear arms. Does that prefatory clause referring to militias hold as much weight as the rest of the sttement? By what reasoning? Is that your opinion, the view as held by the Framers or an established legal precedent? Why should any of the three be considered legally binding on how the Constitution is to be applied? It's all so simple, you should have no problem supporting your simplistic position.

kygirl93:

Oh come now. We vote them in one time, then for the next forty years they get to do whatever they feel like without ever facing any voters again, and that's the democratic process at work?

Don't think so.

Um, yes, that is EXACTLY the "democratic process" as outlined by the Constitution itself, the document you would like to see so ruthlessly followed! To remind you--the point of the INDEPENDANT, NOT DIRECTLY ELECTED JUDICIARY is to provide checks to the other branches by a group that is not beholden to the whims of the electorate, they are only beholden to the Constitution itself. And, it's function is to interpret the laws of the land to determine whether they fit into the constitutional framework. That's what they do. The problem for folks like you comes when they don't interpret laws in a way that you like.

So long as they are actually beholden to the Constitution, I think that's great. It's when they go beyond the plain wording of the Constitution that we run into problems. That's exactly my point.

[Article III judges serve "during good behavior." Judges can, and have been, removed from office for their poor conduct (google, for example, "Walter Nixon"). When they are so impeached, it's by Congress, and the courts will refuse to even consider whether the impeachment was proper - it's entirely in the hands of the elected officials.]

Would to God that Congress has the cojones to actually exercise this right in the modern era.

vnk:

What about our most important right of all: The right to direct our government via the democratic process?

Part of the problem here is that you seem to be operating under some confusion about the system of government the founders attempted to create via the Constitution. We emphatically don't live in a true democracy.

The founders were struggling to come up with a system of government balanced against two disparate forms of tyranny: the tyranny of despots on the one hand and the tyranny of mobs on the other. The compromise that was decided upon was that rule would be decentralized but concentrated in a Federal, tripartite, quasi-oligarchical form. (The oligarchical aspects of our government were greatly reduced by Amend. XVII.)

Under the Constitution as originally written, "our" ability to "direct" our government is filtered in a number of ways: our State officials elect the Senate and choose the electors for President, the Federal officials we directly elect to the House are members of an inferior legislative body, and judicial officials are selected by the indirectly-elected President subject to the advice and consent of the indirectly-elected Senate. The machinery is designed to be operated by remote pulleys and rods so that neither a mad crowd nor a would-be monarch can muck up the works with greasy fingers.

Seen in that light, the lifetime appointment of judicial officials is a benefit, not a curse: judges and justices can operate without fear of being at the whim of electorates or elected officials. In other words, the judiciary is intentionally an anti-majoritarian body that, in theory at least, can protect minorities or serve as a braking mechanism against heedless changes at the majority's whim. (Whether this is the case in practice, of course, is another matter.)

Frankly, whenever people complain about "judicial activism," it's inevitably code for "striking down or enforcing policies I don't agree with and my opinion ought to control because I'm a taxpayer and I vote and I'm right and I know it." Such pleas are often followed by an appeal to "democracy" -- probably because democracy is a nice idea that flatters our egos. The notion that maybe democracy can be a bad thing and that the political geniuses who wrote the Constitution knew it doesn't ever seem to enter into it.

We live in a republic with democratic features and institutions. It's not a bad compromise, but only because there are anti-majoritarian controls to keep a riot from breaking out.

Look, I know full well the the Constitution puts brakes on the popular will. You're not as much smarter then everyone else as you seem to think.

But the Constitution also puts brakes on the Judiciary. They are supposed to be constrained by its meaning. When they decide to call whatever they think is good policy "Constitutional" and whatever they dislike "Unconstitutional" we've lost our freedoms.

You can debate whether abortion should be legal or not. That is a legitimate conversation. But try to tell me that the Founders INTENDED the constitution to protect abortion as a fundamental human right. You and I both know that's a lie.

We can debate whether gay marraige should be legal in this country. But try to tell me that the Founders intended to protect gay marraige as a fundamental human right, and you and I both know it's a lie.

The fact is that MOST of these types of questions were purposely left up to the legislative bodies. When courts decide them for us, they are usurping authority that does not belong to them.

One difference between liberals and conservatives in this country is that the conservatives obsess unnecessarily over what the founders intended. What the founders intended, in my view, was to create a flexible document that could be adapted to various situations; asking the hypothetical question of what they might have thought about a situation that was technologically or socially impossible in the 18th century, as a Justice like Scalia purportedly would, is delusional. To ask what Jefferson or Madison intended about DNA patents, digital reproduction of copyrighted material for personal use, free speech in public schools, or use of public monies to assist unmarried young women in procuring abortions presupposes that you had time to explain genetics, electromagnetism, the establishment of education funded by property taxes and the evolution of "youth culture" over the latter half of the 20th century, and a revolution in gender roles beginning with suffrage movements in the 1890s and 1920s and subsequently accelerated by a World War in the 1940s and technological advances in birth control in the 1950s.

In other words, conservatives would have you ask dead men complicated questions that they'd be incapable of understanding the premises of to start with.

Making any other claims, then, about what I think the founders intended about abortion is absurd: I really don't care what the founders intended about abortion for non-historical purposes any more than I care what they thought about slavery beyond the historic context. I only went on about what they intended regarding the courts to point out the obvious fallacy in your claims about democratic control.

As to what the Constitution says today, I see two options. I can interpret it as a living document, interpreting it in an expansive way that includes a contemporary sense of things like freedom and privacy, or I can interpret it as a dead document. If it's the latter, we are in an age of Constitutional crisis and it is time for at least a Constitutional Convention if not an outright revolution: unfortunately, this would be rather messy and inconvenient. Having professionally sworn to uphold the Constitution when I became an attorney, and liking a modicum of stability in my day-to-day life, and being an unabashed liberal, I prefer to read it as a living document that creates a penumbra of rights, some of them fundamental.

Okay, I actually do suspect that's what Mr. Jefferson, at least, intended even if he and I would differ about what those rights might be--but if it's not, well screw him: he's dead and I'm not.

VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

the true conservative:

VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

So the legislatures are infallible--why? Because they are the "will of the people" or some such? And if the legislature creates a law expressly infringing on speech, and it is challenged, then the SCOTUS is supposed go along with it because it's law? Um, then exactly what purpose would they serve?

We are a "free people" because of the Constitution, not in spite of it, as you seem to think.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

You can't possibly be serious on this????

<<We don't gripe about the Dred Scott - Plessy switcheroo.>>

I think you meant Plessy-Brown switcheroo, but I get your point. Good post, however (although I disagree with Roe).