AMERICAN CONSERVATISM IN 2008 AND BEYOND

Ah, I like this argument. Here, George W. Bush, on June 26, 2003:

Quote:

The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy.



What does your MAC ideology tell you in this case? Take what the President said at face value, prohibit, investigate and prosecute all acts of torture... or let him off the hook by a subsequent ". . . unless this or this or that is the situation. . . ."?

Inquiring minds want to know.

How's that?

But there is no compelling evidence of law breaking in this case

In other words you seem to still have no clue about what I have been saying or why nor, based on what you've said so far, do you intend to be honest or fair in representing my point of view. I understand that your point of view is that those who break the law should be punished. I agree. But there is no compelling evidence of law breaking in this case and therefore any investigation would be a pure witch hunt on the part of one admistration investigating the previous one. And for all our sakes, that is what all Americans should strongly resist.

Judges do make law " it's their job
(By Erwin Chemerinsky and Catherine Fisk, USA Today, August 23, 2005)

Misleading and silly slogans about what judges do are dominating the debate about Supreme Court nominee John Roberts.

President Bush and Republican politicians constantly repeat, as a mantra, that Roberts is a desirable choice because he won't "legislate from the bench" and will merely "apply the law, not make it."

But every lawyer knows that judges make law " it's their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time.

Indeed, one of the most fundamental doctrines of American law " the authority of courts to declare laws unconstitutional " is entirely made by judges. Nowhere does the text of the Constitution mention the power of judicial review, and it may fairly be debated whether the framers of the Constitution intended to create such a power.

Supreme Court justices must interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms that protect "liberty" or prevent government from the "establishment of religion" or from imposing "cruel and unusual punishment."

For example, more than 60 years ago, the court considered an Oklahoma law that required the sterilization of anyone convicted twice of a felony involving moral turpitude (in that case, the crime was robbery). The court held that the law did not provide equal protection and added that forced sterilization was unconstitutional because the right to procreate is a fundamental aspect of the liberty protected by the Constitution. The justices were "making" the law.

Likewise, in the landmark decision of Brown v. Board of Education, the justices "made" the law in deciding that the equal protection clause prohibited racial segregation in schools and in overruling the infamous decision of Plessy v. Ferguson, which had held the opposite.

Not all judicial lawmaking involves the interpretation of vague constitutional or statutory provisions. Judges sometimes decide that clear legal language means something different than what a layperson might think. The conservative majority of the court has decided that the 11th Amendment, which says that a state may not be sued by citizens of other states, instead creates a wide-ranging doctrine of "sovereign immunity" that nobody can sue the federal or state government, even his own state, in state or federal court. That was judicial lawmaking par excellence, a wholly invented broad principle nowhere mentioned in the Constitution, along with an elaborate set of limitations and exceptions.

Conservatives point to Roe v. Wade as an example of the court legislating from the bench because the Constitution does not mention privacy. They also decry the set of limitations on the constitutional right to abortion that the court has developed over a series of cases since Roe. But the court's sovereign immunity decisions are open to the same criticism. The Constitution says no more about sovereign immunity than it does about privacy.

Conservatives are no more willing than liberals to defer to government choices they dislike. Two years ago, conservatives were angry the top court did not declare unconstitutional the University of Michigan Law School's affirmative action program. That same year, conservatives were outraged the court overturned the Texas law prohibiting private consensual homosexual activity. Let's face it: Conservatives and liberals believe judges should make law that invalidates undesirable action by elected branches of government. They just disagree about when judges should exercise that power.

Lawyers know that the oft-repeated phrases about judges making law are just slogans. But the quality of public debate is lowered when people insist upon something they know to be false.

We can disagree over court decisions. We should debate the kind of law that John Roberts would make as a member of the country's most powerful court. But we should do so in a way that accurately reflects what everyone knows about the legal system: Judges do make law and always have.

Erwin Chemerinsky and Catherine Fisk are professors at Duke University School of Law.

I would agree CI if I had said anything like that. But you seem to be following me around misunderstanding and misstating everything I say. I can't believe you are too illiterate to actually read and understand what is actually said. But I could be wrong about that--you seem to be desperately trying to make me wrong about everything I say, so why not that?

Foxfyre wrote:

I would agree CI if I had said anything like that. But you seem to be following me around misunderstanding and misstating everything I say. I can't believe you are too illiterate to actually read and understand what is actually said. But I could be wrong about that--you seem to be desperately trying to make me wrong about everything I say, so why not that?

Foxfyre, you are not alone... I am getting the same treatment from CI.

You want to join with me in praying for him?

Who is the "ad hominem" attack supposedly directed at? Where have I attacked anyone's personal character or appealed to their emotions? You people use that term so cavalierly, it's become meaningless.

None of those are ad hominem attacks. I'd invest in a dictionary if I were you.