Activist Courts vs Oppressive Gov't (also Alternative Voting Systems)

In the ongoing "culture war" the right has come up with a tactic to indict the court system itself, and some justices in specific, simply for doing their job.In specific, as gays move against legislation which they feel is unfair and challenge thos laws in court, the right cries foul when the courts agree with the citizen over the legislature. They call this being an "activist".Now Bush and Co. (which I realize is NOT all republicans so I won't say that) are trying to push through legislation and amendments in order to stop all this "activism"... maintaining that in some way the courts are stripping you of your freedom.Yet courts (especially federal courts) being able to make judgements in favor of citizens over legislatures are not only by definition maintaining freedom, that is also the PURPOSE OF THE COURTS!To create a reality where courts are unable to affect legislation is to finish off checks and balances and leave no recourse to minorities except open war against an oppressive government.I'm not saying they must always find for the citizen, for not everyone might have a valid case, but no one can scream "activist court" without showing why the citizen did not have a case beyond "because I didn't like the result" or "because the legislature says otherwise."I find it insulting as at the very same time Bush and Co also WANT justices and courts that dictate policies (namely their own), and are trying to put them into the system. They also claim to be "wanting debate" on these social issues, only to complain when the debate ends and they lose.So where is the question in this? Well the above is how I see things going right now, and so I find it ironic that a group of people desiring a culture war, are labelling a group which repels their attempts at oppression as "activist".Is it the courts which are really "activist", or is it the case that the legislatures have been and still are passing laws which violate the rights of others and the courts are just doing their job against oppressive "activist" legislative majorities?In any case, how can one tell the difference? What set of criteria allows one to define when a justice is being honest and being an activist?

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

Since this came up in another thread (http://EvC Forum: George W. Bush's qualifications to be President -->EvC Forum: George W. Bush's qualifications to be President) I thought I would bump this one.

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In any case, how can one tell the difference? What set of criteria allows one to define when a justice is being honest and being an activist?

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I don't know that we could find a criteria for this. The best you could hope for would be to work the appeals process and hope to get a "non-activist" ruling.We could also ask how we can tell the difference between good legislation by congress and that which is merely driven by greed or corruption or worse: religious bias?The whole "activist judge" angle is just another way for the other two branches of government to try to take power from the Judiciary. God forbid you should have some independent oversight.One question about this topic. Does anyone know when the term "activist judge" first showed up? Was it during this administration?

The irony is that Bush was appointed by that very court in spite of clear constitutional process to handle the situation.heh.

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we are limited in our ability to understand
by our ability to understand RebelAAmerican.Zen[Deist
{{{Buddha walks off laughing with joy}}}

Actually, the Constitutional process, as well as legal precedent, is that the state determines its electoral process, barring overt unfairness (like illegally removing large numbers of minorities and ex-felons from the voting rolls). And the Florida Supreme Court ruled that the recount should continue.

Exactly, but there is also a provision in the constitution that if the delagates do not make it in time to vote in the electoral college that it would proceed without them. With no votes from Florida bush would have won the electoral college vote.Personally I think that one of the things that should have come out of the review (big hoopla small result) is that anytime there are a greater number of "damaged" votes than the difference between the top two candidates that it automatically result in a re-election (between just those candidates). A second thing that should have come out is that the votes should not be counted until every vote has been cast with an immediate hold on the count information in any state needs to do the election over. And a third thing that should have come out is a mechanism to ensure that all votes cast are valid.These are small do-able changes using existing technology.

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we are limited in our ability to understand
by our ability to understand RebelAAmerican.Zen[Deist
{{{Buddha walks off laughing with joy}}}

I could not find this provision... and I just went through it again. Maybe I am missing something.However, I do agree that there were provisions in the Constitution for what happened in 2000 and was stunned when nothing was followed. Now maybe you are right and what you just said was supposed to be followed. But if that is NOT the case then the following certainly DOES say what should have happened... Section 1 is what set the date that the SC said HAD to be the deadline we could not fail to meet. Okay, and Section 3 says what we are supposed to do if the president and vice president are not qualified by that time.Given that it would have come down to the Congress my guess is they would have voted in Bush, but maybe it would have been Gore or to keep Clinton, UNTIL the time that the qualifications were settled...It certainly was NOT up to the SC to decide the rules of electorates for the state, nor the decision of the legislature for the nation.As far as the electoral college voting without all attending, I think you may have made an error. As far as I can tell that is only referring to representatives of the House, and not the electors, should the electors fail to reach a majority vote on the president.Thus all electors MUST assemble and vote. I they fail to produce a majority vote for President, then the decision moves to the actual state Reps in congress, and if not all of them can make it, it proceeds without them.But I am open to better constitutional scholarship!

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

That's what I never got in this whole issue. When people say this I am like "You mean the judges act as a CHECK on the legislature?"What an awful development. I don't believe it happened within "this administration", but I do believe it happened within the Republican party and within the last two administration's time.

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

quote:

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But I am open to better constitutional scholarship!

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My understanding is that the majority of legal scholars, and almost all of the law journals, were apalled by the the 2000 Supreme Court decision. Hell, even the Supreme Court itself ruled that its ruling should not be used as a precedent on future cases!

Yeah, it read like a joke, but in legalese. I could not believe what they were trying to pass off, and WITH THE BLESSINGS OF THE REPUBLICANS????And NOW they want no activism in the court. Flip-flop flip-flop.

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

The provisions are there here are the constitutional provisions for election of the president (a complete history? Parts in italics are supercede by later amendments, parts in yellow are for emphasis):From Page Not Found From Sucuri WebSite Firewall - Access Denied From Sucuri WebSite Firewall - Access Denied There is no mention of whether all votes need to be cast for the count to take place, and no mention of whether all the votes need to be received in time for the vote. The provisions for a quorum would rule here (electoral members from two-thirds of the states, and a majority of all the states shall be necessary to a choice).It is also up to the states to determine how the electors are selected (Article. II. Section. 1. Clause 2.) and to get it done in time, while the rest determines what happens after that selection process is completed.This is why some states choose to divide their electors proportionally to the popular vote and others choose to delegate all the electors to the majority winner in the state, a sate of affairs that makes some swing states more important than others. (this is also something that should have been addressed in the national review of voting practices: my vote should count to the same degree no matter what state I vote in, shouldn’t it?). Florida is one of those states that delegates all its electors to the majority winner of the state (and if it had been proportional Gore would have handily defeated Bush).Now we go to Constitutional Topic: The Electoral College - The U.S. Constitution Online - USConstitution.net for (yellow and bold emphasis mine): (With absolutely nothing done to change the voting system the watershed analogy seems to have run into a drought of follow-up interest.)There is some more on the history of the electoral college and its effect on several elections at Selecting Electors - How the Electoral College Works | HowStuffWorksWell, now we need to look at the Florida provisions for choosing their electors, except it is not in their state constitution I remember reading that they could be chosen by the state legislature if the count was not certified (and they would have then gone to Bush).This link was supposed to go to State Laws Regarding Electors, but the link is broken.
Page Not Found | National ArchivesThis link lists some laws regarding electors:
http://www.archives.gov/...ctoral_college/2000/laws.html#topAnd that lists Florida State law 103.021, see
http://www.flsenate.gov/statutes/( Chapter 103).html (link shorted to save space)Looks to me like Florida dropped the ball on ensuring they had electors in place, so they would have been no-shows and the rules of the quorum in the electoral college would then have applied.Notice that the pledge of the president when he is sworn in to office is (Article II section 1): And by Bush going to the Supreme Court he violated that provision, only a quibbler would argue that it was before he became president, as it just isn’t presidential to act that way.A recap of the last election and the ramifications is on How the US Electoral College System Works and it says (yellow color for emphasis mine): Note the error here compared to the quorum rules established by the Constitution: the Electoral College votes would be reduced from 538 to 513, but the number needed to win would remain at 270. Neither Bush nor Gore would have had enough to get a majority vote and so the other provisions would kick in (as they have in the past — this is not the first time this has happened) and the republican dominated house and senate would have elected Bush.What really frosted me about the US Supreme Court decision to hear the case is that they are supposed to be the final arbiter of the Constitution and they clearly blew it. They should have said that sufficient provisions were in place and they were to be followed.One of the really bad things this decision did was to reduce the checks and balances as the justices are appointed by the president: if the president is de facto chosen by the court can he truthfully, without conflict of interest, appoint a single judge?What this election really should have done is ignite a nation-wide discussion on what is the fairest way to elect all our representatives — is there a method that was not known when the constitution was written that is a better choice?{{gets down off soap-box and disappears into the crowd before the Homeland Security Detail arrives }}Enjoy.This message has been edited by RAZD, 09-02-2004 11:55 AM

Yes they are a check on the legislature, and on other laws passed in this country. That is why the texas sodomy law was ruled unconstitutional and why similar laws on gay marriage even by the legislative branch would not be good enough and so they are talking about an ammendment to do that bit of bigotry. Where it would get interesting is if the Court says such an ammendment was unconstiturional ...

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we are limited in our ability to understand
by our ability to understand RebelAAmerican.Zen[Deist
{{{Buddha walks off laughing with joy}}}

yes heaven forfend if the same process was used to select a democrat president ...

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we are limited in our ability to understand
by our ability to understand RebelAAmerican.Zen[Deist
{{{Buddha walks off laughing with joy}}}

Actually if you remember what happened at the time, the republicans originally thought they would win in the Florida courts and so blasted Gore beforehand not to DARE go to the SC to try and overturn any decision.I was following this closely at the time and laughed my ass off when they shortly turned around and argued how "it was their right". Yeah, that was not an encouraging sign.

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

Okay, I actually have a copy and read through it a couple of times after I read your post, and sure enough I think you have misread something.Take a real close look...First Article 2 sec 1 clause 3... It starts by stating that the electors of all states will meet in their states and vote and then send their votes to Washington at which time... So far so good, most votes from electors is president. But then... So in the case where electors have not made a definitive choice, the House makes the decision. Thus this following section appears to be related to the House and NOT the electors... Doesn't that look right to you?And this appears to be directly related to the Amendment which replaces it... Amendment 12. First it instructs the Electors to meet and vote and send their votes to Washington, where... Like above, so far so good... Again, we have now moved from the Electors which are assumed to have made their choice, but not a definitive one, to the House... The above is your highlighted section but it appears to be instructions for how the House will vote and not the Electors. The Electors from the states seems to have been assumed. Or is there something I am missing?This is why it looks to me like Amendment 20, section 3 is the actual pertaining piece of Constitution. That deals with if a president has not been chosen, which WOULD have been the case in 2000. Only if the electors had all voted, or if that vote were tied then the House voted according to the quorum rules stated, would the President have been elected.It appears that the Congress should have made legislation for what was supposed to happen in this event and NOT the Court. On top of the outdated electoral system in general, I always wondered how people thought having votes differ in this way was a good idea.

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holmes
"...what a fool believes he sees, no wise man has the power to reason away.."(D. Bros)

ok. correct . BUT I still see no reason for all electors to have voted (an abstaining vote cripples the process???), all it says is that the certificates will be opened and counted, nothing about what to do if any are missing. What we need are procedural rules for the electoral college voting.AND the constitution is clear that it is a state matter on how the electors are chosen, and that Florida was robbed of that by the Supreme Court. It is specifically left to the State Legislature to decide: so they could have met and declared what the outcome was if the election re-count was notcompleted in time. Simple.Note: I find it interesting that the original intent was that each elector cast two votes, presumably for the two different best candidates of their choice .... and this is more like consensus voting than majority voting.Here is a bit more information, but it is not legally binding ... from
Page Not Found Precedent for not counting a states votes, it also mentions a case where a vote was not cast. From this I also gather that should florida have proceded to send votes that were not certified that an objection could have been lodged to not count those votes, and then the house and senate would each decide whether to count the objected votes or not.It seems to me that the contingencies were covered. No need for jurisimprudence.

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we are limited in our ability to understand
by our ability to understand RebelAAmerican.Zen[Deist
{{{Buddha walks off laughing with joy}}}