User Tag List

First 567

Results 61 to 65 of 65

  1. #61
    Senior Member lowtech redneck's Avatar
    Join Date
    Aug 2007
    MBTI
    INTP
    Posts
    3,705

    Default

    Quote Originally Posted by Rajah View Post
    I've already explained what I think the role of judges are.

    So let me ask you this. When the Supreme Court held desegregation unconstitutional in Brown v. Board of Education, was this an abuse of judicial power?
    No, that decision was within the bounds of the post-Civil War Constitutional Amendments, as was the Voting Rights Act. The aspects of the Civil Rights Act that prevent discrimination practiced by private business (outside of businesses off of inter-state highways, which is much more of a gray area) frankly WAS an abuse of authority, as the ostensible basis of its supposed Constitutionality effectively nullified the Tenth Amendment by fiat. In the long-term, it would have been much better to institute that aspect of the Civil Rights Act as a Constitutional Amendment-it would have taken longer, but the priceless baby (the Constitutional balance of powers between state and federal government) would not have been thrown out with the disgusting bath water (discrimination).

    In any event, as I said before, extrordinary circumstances (a hundred years of extreme, systemic and culturally entrenched racial discrimination certainly qualifies) might justify isolated acts off judicial activism, but such abberations should be acknowledged as an unfortunate, pragmatic neccessity with no far-reaching legal impact (which should not be confused with the tangible consequences of a ruling), and certainly not promoted as justification for judicial activism in general.

    Edit: I have to do some things now, too, but briefly put, my assumption is not than people are capable of being truly objective, just that an originalist judicial philosophy minimizes the element of subjectivity (that will always be present to some extent), both by socializing and mentally habituating the jurist themselves and by making overly broad judicial interpretations difficult to legitimize to themselves and others without cognitive dissonance doing its work.
    Last edited by lowtech redneck; 05-05-2009 at 04:42 PM. Reason: self-evident

  2. #62
    now! in shell form INA's Avatar
    Join Date
    Jun 2008
    MBTI
    intp
    Posts
    3,198

    Default

    Quote Originally Posted by Rajah View Post
    I've already explained what I think the role of judges are.
    Ignoring precedent in the service of enlightened progress? (And hoping that the "enlightened" agrees with our notion of discretion). this is something you would advocate as a general legal principle?
    Thomas is on record as holding little regard for stare decisis. He's not alone. Conservatives have been itching to take a bat to the whole edifice of liberal precedents, e.g. that grounds abortion in the right to privacy.

    Quote Originally Posted by Rajah View Post
    So let me ask you this. When the Supreme Court held desegregation unconstitutional in Brown v. Board of Education, was this an abuse of judicial power?
    That depends on whom you ask. Some think so. Some share lowtech redneck's view below.

    Quote Originally Posted by lowtech redneck View Post
    No, that decision was within the bounds of the post-Civil War Constitutional Amendments, as was the Voting Rights Act. The aspects of the Civil Rights Act that prevent discrimination practiced by private business (outside of businesses off of inter-state highways, which is much more of a gray area) frankly WAS an abuse of authority, as the ostensible basis of its supposed Constitutionality effectively nullified the Tenth Amendment by fiat. In the long-term, it would have been much better to institute that aspect of the Civil Rights Act as a Constitutional Amendment-it would have taken longer, but the priceless baby (the Constitutional balance of powers between state and federal government) would not have been thrown out with the disgusting bath water (discrimination).
    Even some liberals acknowledge that although it was the "right" outcome it was poorly reasoned and point out current challenges in education law - and education in poor minority schools - that have their root in the questionable foundation of the ruling. Same with roe v. wade.

    Similarly, if, instead of applying the law, the judge in Genarlow's case had decided to give him a break, we'd be dependent on future judges' discretion to avoid more Genarlows, rather than on the more robust reassurance of improved law.



    Quote Originally Posted by lowtech redneck View Post
    Extraordinary circumstances (a hundred years of extreme, systemic and culturally entrenched racial discrimination certainly qualifies) might justify isolated acts off judicial activism, but such abberations should be acknowledged as an unfortunate, pragmatic neccessity with no far-reaching legal impact (which should not be confused with the tangible consequences of a ruling), and certainly not promoted as justification for judicial activism in general.
    QFT
    Quote Originally Posted by lowtech redneck View Post
    my assumption is not than people are capable of being truly objective, just that an originalist judicial philosophy minimizes the element of subjectivity (that will always be present to some extent), both by socializing and mentally habituating the jurist themselves and by making overly broad judicial interpretations difficult to legitimize to themselves and others without cognitive dissonance doing its work.
    And ditto again. Not to mention the mangled body of precedents left in the wake of too much exercise of discretion. Where is the legal predictability in that?

  3. #63
    Permabanned
    Join Date
    Apr 2007
    MBTI
    xkcd
    Enneagram
    9w1 sx/sp
    Socionics
    INT_
    Posts
    10,733

    Default

    This reminds me of the MBTI question:

    Justice or mercy?

  4. #64
    Reigning Bologna Princess Rajah's Avatar
    Join Date
    Apr 2007
    MBTI
    ENTP
    Enneagram
    7
    Posts
    1,774

    Default

    Quote Originally Posted by MacGuffin View Post
    This reminds me of the MBTI question:

    Justice or mercy?
    I've always thought that was a false dichotomy. True justice incorporates mercy.


    I... suppose. Yeah!

  5. #65
    ^He pronks, too! Magic Poriferan's Avatar
    Join Date
    Nov 2007
    MBTI
    Yin
    Enneagram
    One sx/sp
    Posts
    13,912

    Default

    This doesn't strike me as justice vs mercy as much as it strikes me as two different ways to logicall and practically frame justice.

    Most of the people participating in the debate here are INTP, on both sides, but I'd say one argument seems more Ti and the other seems more Te.
    Go to sleep, iguana.


    _________________________________
    INTP. Type 1>6>5. sx/sp.
    Live and let live will just amount to might makes right

Similar Threads

  1. Older retired male INTP
    By zelo1954 in forum Welcomes and Introductions
    Replies: 48
    Last Post: 05-08-2013, 04:18 PM
  2. Paul Otellini to retire in May
    By ygolo in forum Science, Technology, and Future Tech
    Replies: 0
    Last Post: 11-19-2012, 04:56 PM
  3. Ivy's (Sheepishly Coming Out Of) Retirement Thread
    By Kasper in forum Official Decrees
    Replies: 113
    Last Post: 09-15-2012, 10:11 AM
  4. Retirement savings
    By Randomnity in forum The Bonfire
    Replies: 7
    Last Post: 08-27-2010, 02:25 PM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
Single Sign On provided by vBSSO