Comrade Pope backs carbon tax

[Idolater]

Good question. A constitutionalist is someone who believes our Constitution is the supreme law of the land and that any department of government, law, legislation, etc... that does not comply with the intent of the founders when they wrote the Constitution is null and void. The same goes for the legal system and the Supreme Court decisions for the SC has been slowly destroying our Constitution for many decades with their decisions. And, the legal system has completely abandoned how law is administered compared to how this was done originally. Today everything is based on precedent, but that has only been since latter half of the 1800s. Before then the basis of our law and legal system was Blackstone's theory of law which is based in Christianity. The SCs role has become an 9 person oligarchy that is ruling this nation by fiat of legal decisions rather than staying within the Constitution's guidelines for the limits of its authority.

The move to precedent was intentional as it allows the legal system to change the focus and direction of society without the need to enact legislation or appeal to the voters.

I believe that precedent far precedes America. English common law is based on precedent. In fact, "common law" implies respect for precedent. True, [MENTION=7640]Town Heretic[/MENTION]?

I do agree with you that the S. Ct. has become 'politicized.' But also, the Constitution authorizes the S. Ct. to authoritatively interpret the law according to their view of the Constitution. So it was almost inevitable that it would become politicized. But the politicization of the S. Ct. was I believe most severe during FDR's administration, and a lot of precedents were set during that era, and I do prefer that justices are open to breaking with precedent, like Justice Thomas.

 

[Town Heretic]

I believe that precedent far precedes America. English common law is based on precedent. In fact, "common law" implies respect for precedent. True, @Town Heretic?

It's inextricably bound up in it, with dictum, ratio decidendi, and stare decisis--which I can get into, but will take some unpacking for most people who aren't lawyers.

I do agree with you that the S. Ct. has become 'politicized.' But also, the Constitution authorizes the S. Ct. to authoritatively interpret the law according to their view of the Constitution. So it was almost inevitable that it would become politicized.

You should read Eugene Oliphant on the point. He believed a problem with modern jurisprudence is that we've gotten away from very particular applications and more and more removed into realms of theory that cause a detachment from the empirical intent and foundation of how we approach the law. Early, in common law, writs were complicated but the application wasn't. You had writs for all sorts of things, very specifically tied to the simple particulars of a case. In modern times that is reversed, with general principles being interpreted and applied to very particular and intricate points of contention. So Oliphant contended the thrust of the law had been turned on its ear in terms of how judges related to cases and that turned an empirical approach into a philosophical one to the detriment of justice.

But the politicization of the S. Ct. was I believe most severe during FDR's administration, and a lot of precedents were set during that era, and I do prefer that justices are open to breaking with precedent, like Justice Thomas.

A lot of it's a natural evolution and the explosion of technology and the involvement of the government in a more day to day way for Americans that brought with it a proliferation of new opinions that were essentially extrapolations from different foundations. Breaking with precedent tends to happen on narrow margins, in the razor thin, one justice decides it cases. Breaking from more solidly formed precedent is dangerous for the Court and the subordinate courts. Doing so more than within the realm of exception would invite a complete politicalization of the Court and eliminate the value of precedent. The justices understand that and have tended to shy from doing what would undermine their own efforts in a generation.

 

[Gary K]

I believe that precedent far precedes America. English common law is based on precedent. In fact, "common law" implies respect for precedent. True, @Town Heretic?

I do agree with you that the S. Ct. has become 'politicized.' But also, the Constitution authorizes the S. Ct. to authoritatively interpret the law according to their view of the Constitution. So it was almost inevitable that it would become politicized. But the politicization of the S. Ct. was I believe most severe during FDR's administration, and a lot of precedents were set during that era, and I do prefer that justices are open to breaking with precedent, like Justice Thomas.

I would point you to a book written by a very good constitutional lawyer who defends those people who are run over by government overreach. The man's name is John W. Whitehead and the book to read is: The Second American Revolution. In it he traces out what I have said here in great detail.

 

[Idolater]

It's inextricably bound up in it, with dictum, ratio decidendi, and stare decisis--which I can get into, but will take some unpacking for most people who aren't lawyers.

And so far as I can tell, the 'stare decisis' is the precedent itself, the 'ratio decidendi' is the primary reason given for the precedent, and the 'dictum' is a nonbinding but informing opinion rendered by the court in the particular case?

You should read Eugene Oliphant on the point. He believed a problem with modern jurisprudence is that we've gotten away from very particular applications and more and more removed into realms of theory that cause a detachment from the empirical intent and foundation of how we approach the law. Early, in common law, writs were complicated but the application wasn't. You had writs for all sorts of things, very specifically tied to the simple particulars of a case. In modern times that is reversed, with general principles being interpreted and applied to very particular and intricate points of contention. So Oliphant contended the thrust of the law had been turned on its ear in terms of how judges related to cases and that turned an empirical approach into a philosophical one to the detriment of justice.


A lot of it's a natural evolution and the explosion of technology and the involvement of the government in a more day to day way for Americans that brought with it a proliferation of new opinions that were essentially extrapolations from different foundations. Breaking with precedent tends to happen on narrow margins, in the razor thin, one justice decides it cases. Breaking from more solidly formed precedent is dangerous for the Court and the subordinate courts. Doing so more than within the realm of exception would invite a complete politicalization of the Court and eliminate the value of precedent. The justices understand that and have tended to shy from doing what would undermine their own efforts in a generation.

The more I learn about this, the more apparent it becomes to me that we are just 'kicking the can down the road' wrt amending our Constitution.

The Second Amendment, for example, was written by and ratified by people who are all long dead. Many of them did write about what their reasoning was in writing /ratifying it, but even still this remains a matter of interpretation, and not just a plain reading of the law. Because "long dead."

Those then who ratified the Bill of Rights approved of whatever it was that they meant then, and nowadays, we are leaving it to the Judicial Branch to tell us what We the People mean by our own Constitution. Rather than this politicization of the S. Ct. governing whom people like me support for President, it seems like it would just be a much better idea for us to amend the Constitution, and in so doing clarify exactly what we mean by The Right to Bear Arms Shall Not Be Infringed, if we even all still believe that. Same goes for abortion rights. Rather than put the whole load onto the shoulders of the S. Ct., we should get serious about these matters and other disputed things, and amend our Constitution, so that so much power no longer rests in the hands of the justices, and instead is returned to We the People, through the Congress.

The S. Ct. should be a far less glamorous and contentious and exciting job, iow. It should be boring desk work for the most part, keeping federal, state, and municipal lawmakers in check, against a very clearly written, and modern Constitution. What we have today makes the Constitution to be like a lump of clay that is formed by values brought to the table by the justices, and amending the Constitution to address disputed matters is merely setting out what we want our justices to do, nullifying whatever personal values they might have, as it regards their work.

Thank you for the clarification above, and I will check out Oliphant. Thank you for that tip.

 

[Idolater]

I would point you to a book written by a very good constitutional lawyer who defends those people who are run over by government overreach. The man's name is John W. Whitehead and the book to read is: The Second American Revolution. In it he traces out what I have said here in great detail.

See my post above to Town. I think that the S. Ct. has become politicized, is evidence that We the People are shirking our duty---to ourselves---to amend our Constitution. It's past due, our need to clarify what We---not the We of 1791 or whenever, but the We today---mean by the Constitution. Our law is not received but created. And right now, our law is telling us that we need to amend our Constitution, because right now, we are 'jockeying for justices,' and that's just not in keeping with what anybody thinks America is supposed to be about.

 

[Gary K]

See my post above to Town. I think that the S. Ct. has become politicized, is evidence that We the People are shirking our duty---to ourselves---to amend our Constitution. It's past due, our need to clarify what We---not the We of 1791 or whenever, but the We today---mean by the Constitution. Our law is not received but created. And right now, our law is telling us that we need to amend our Constitution, because right now, we are 'jockeying for justices,' and that's just not in keeping with what anybody thinks America is supposed to be about.

I didn't realize that you are an evolutionist.

 

[Idolater]

I didn't realize that you are an evolutionist.

I can't be certain what you mean by 'evolutionist,' but I'm pretty sure that no, I am not that.

 

[Gary K]

I can't be certain what you mean by 'evolutionist,' but I'm pretty sure that no, I am not that.

The move to precedent in the US legal system was put in place by evolutionists and socialists because they believe law, like everything else, should "evolve". Thus this issue is directly tied to the principle of evolution. This move changed our nation from being governed by "the rule of law" to one governed by "the rule of men". The rule of men is always associated with tyranny, and the rule of law is always associated with liberty. It also makes the legal system of the US with the SC at the top of it's structure an unelected oligarchy setting the direction of the nation by it's rulings rather than having 3 co-equal branches of government. Meaning of course, that it was an unconstitutional change for this has never been ratified by the other 2 branches of government.

I'll try to get a quote for you from John Whitehead's book that I recommended earlier in this thread to you some time today, if possible.

 

[Idolater]

The move to precedent in the US legal system was put in place by evolutionists and socialists because they believe law, like everything else, should "evolve".

But 'the move to precedent' preceded the United States, as noted prior, in English common law.

Thus this issue is directly tied to the principle of evolution. This move changed our nation from being governed by "the rule of law" to one governed by "the rule of men". The rule of men is always associated with tyranny, and the rule of law is always associated with liberty. It also makes the legal system of the US with the SC at the top of it's structure an unelected oligarchy setting the direction of the nation by it's rulings rather than having 3 co-equal branches of government. Meaning of course, that it was an unconstitutional change for this has never been ratified by the other 2 branches of government.

I believe that the problem right now is that We the People living today have not revised what we mean by our own Constitution, and so the 'jockeying for justices' politicization of the S. Ct. is merely inevitable when things are coming down to how different people interpret the Constitution, which was written and ratified by We the People of the late 1700s.

The politicization of the S. Ct. will continue too, so long as there is a divide between conservatives and libertarians on one side, and liberals and progressives on the other.

Amendment is probably impossible for the next decade or three, but at some point, We the People do have to come to a super-majority (as called for in the Constitution, in order to amend it) on some of these issues, which is the surest way to see that the judicial branch does the job that is specified for them in the Constitution. They were never supposed to be so powerful, we do agree on that, but the problem as I see it is that the Constitution is too old, and needs to be updated with clear 21st century language, to direct the judicial branch according to our will, and not according to their own personal political opinions.

Today we await what the S. Ct. tells us the Constitution means, instead of how it ought to be (and as it was in late 1700s); us (We the People) telling them what the Constitution means.

I think that one way through this, is to pack the S. Ct. with 'originalists' who try their best to interpret what the Constitution meant back then, and develop that meaning into modernity. And if a super-majority of We the People today, do not like what the original intent of the Constitution means today, iow we don't like how it 'aged,' then that could provide incentive to amend the Constitution sooner rather than later.

Whereas, if the S. Ct. instead decides to interpret the Constitution according to modern notions and opinions (i.e., instead of amendment to the Constitution, iow in effect 'legislating from the bench'), then it becomes more and more separated from the world, and we are instead as you suggest, at the mercy of mere men, and not a nation of laws. And we are also objectively contravening the Constitution as it was written and as it was meant in the late 1700s, which is just saying the same thing in another way.

I'll try to get a quote for you from John Whitehead's book that I recommended earlier in this thread to you some time today, if possible.

OK.

 

[Gary K]

Idolater,

Here is the quote from John Whitehead's book. It starts at the beginning of the chapter titled Law Without an Anchor. I'll break it up into two or three posts so it won't be so hard to read.

The shift in the basic foundations of American life from a biblical to a
humanistic base has had a marked influence in every discipline. This fact is no
Iess true of the legal profession, which moved from one of little recognition in
early colonial America to a profession that was highly regarded to one that is
now losing its revered status.

Although reverencing law itself, Perry Miller has written that early
colonial Americans held a distrust for lawyers. For example, the Fundamen-
tal Constitution of Carolina (1669) declared it “a base and vile thing to plead
for money or reward.” In Massachusetts, the Body of Liberties (1641)
permitted anyone who could not plead his own cause to retain someone else
for assistance “provided he give him noe fee or reward for his paines.” This
popular detestation of lawyers was based in part on the biblical view that
justice was of God and that it should not degenerate into a business.

But this early disrespect for lawyers soon changed. As Perry Miller
noted in The Life of the Mind in America, “A phenomenon of fundamental
importance for both the social and intellectual history of America is the
amazing rise, within three or four decades, of the legal profession from its
chaotic condition of around 1790 to a position of political and intellectual
domination.”l One reason for this change was that the legal profession
developed into one of the most cultivated portions of early American society.’
Prime examples of cultured lawyers were Alexander Hamilton and Thomas
Jefferson, both framers renowned for their scholarship; John Marshall, chief
justice of the Supreme Court from 1801 to 1835 and a giant of the law; or even '
Daniel Webster, a great orator who was the subject of much literary attention. '

There is a certain lament today that the cultivated lawyer has been,
lost to society. In his stead, the culture is producing legal technicians who.
have little appreciation for the broader aspects of the law. Today the law
student is surrounded by thousands of law books, which he is supposed to
digest and read. The student is instructed to become a technician in every area
of business: contracts, corporations, and commercial transactions. He also
may become an analytical expert in courtroom tactics, but he often works with
little consideration of what the public looks for in the courtroom: justice.

Yale law professor Fred Rodell expressed these concerns in 1939:

In tribal times, there were the medicine men. In the Middle Ages“
there were the priests. Today there are the lawyers. For every age”,
a group of bright boys, learned in their trade and jealous of the
learning, who blend technical competence with plain and fancy?
hocus-pocus to make themselves masters of their fellow men. For
every age, a pseudo-intellectual autocracy, guarding the tricks of
its trade from the uninitiated, and running, after its own pattern
the civilization of its day.

It is the lawyers who run our civilization for us—our
governments, our business, our private lives."3
​

 

[Gary K]

Over two-thirds of those men who have held the office of president
have been lawyers or have been connected with the legal profession. Also,
between one-half and two—thirds of the seats in Congress have usually been
filled with lawyers. Unfortunately the presuppositional foundation that un
dergirds the law profession has now been shifted from a Judeo-Christian base
to a humanistic one.

“Ours is a sick profession," commented Supreme Court Chief
Justice Warren Burger in an address to the American College of Trial
lawyers. A profession marked by “incompetence, lack of training, misconduct
and bad manners. Ineptness, bungling, malpractice, and bad ethics can
be observed in court houses all over this country every day.”

At the American Bar Association’s annual meeting in St. Louis,
Burger further commented: “The American public is aware of the moral and
professional deficiencies of lawyers, is hurting and doesn’t know what to do
about it, but wants to do something.“ In fact, a 1973 Harris Poll found that
only 18 percent of the public had confidence in lawyers, a somewhat lower
approval rating than that of garbage collectors.

The moral and professional decline of lawyers is a threatening
phenomenon because lawyers through the various government agencies and
the courts literally run the country. French journalist Alain Clement com
mented in 1980 that American lawyers are “the ruling class." Says Clement:
"About 40,000 lawyers work in Washington, double the number 10 years
ago. Eight of 13 cabinet members are lawyers, 8,000 participate in govern-
ment . " Moreover, Clement writes: ”The exceptional position of the Ameri-
can lawyer derives from the power of American judges. Their power in turn
springs from their role in interpreting the Constitution."4

The legal profession, because of its power to mold laws (and even
the Constitution) has become the eye of the storm, so to speak, in terms of
social change. An aggressively humanistic legal elite seems to be determined
to change the basis of law.

 

[Gary K]

The vital point in any discipline is the education system that undergirds it. The
ideas that people absorb from their teachers more often than not are applied in
the culture at large. This is even truer in legal education since law school is a
vigorous inculcation of principles over a three-year period. An entire world
view can be altered by such an indoctrination.


Likewise, in 1952 Fred Cahill, professor of political science at Yale
University, wrote: “The appearance in the mid-nineteenth century of the
concept of evolution was an event of transcending importance to the de-
velopment of American jurisprudence. . . . This involved . . . a shift . . .from
the rationalistic, deductive pattern, characteristic of the pre-Darwinian
period, to the empirical, evolutionary approach that is followed . . . today."

This shift began in the 1870s when Christopher Langdell, dean of
the Harvard Law School, began to apply Darwinian thought to legal educa-
tion. Langdell introduced the “case method” of teaching law, which as law
professor Herbert Titus has noted, “revolutionized the study of law in the
United States.”7

However, Langdell’s real impact on law education was his belief
that the basic principles and doctrines of the law were the products of an
evolving and growing process over many years. Langdell believed that this
evolution was taking place in the opinions written by judges‘ This meant that
what a judge said was law, and not what the Constitution said.


Before Langdell’s influence became dominant in the legal educa-
tional system, the law had primarily been taught by practicing lawyers in law
practices throughout the country. William Blackstone’s Commentaries were
often the basic legal treatise. The prevailing opinion was that the principles
and doctrines of the law were unchanging: law was based upon absolutes in
the biblical sense. All the student had to learn was to apply those legal
principles and doctrines. Beginning with Langdell, however, law education
shifted to the classroom, where students were taught that the principles and
doctrines of the law were being developed in the appellate courts by judges


The method of teaching used by Langdell though accepted with
enthusiasm by his pupils and soon adopted by his colleagues, met with
criticism both from the bar and from law professors in other law schools“
However, as his students issued forth into the legal profession and assumed
positions in law schools throughout the country, Langdell’s philosophy began
to predominate. Today his ideas and belief system have prevailed.

For example, the eminent Harvard law school dean, Roscoe Pound,
a successor of Langdell’s who is said to have had a profound effect on our
legal system,3 wrote: ‘ ‘It must be borne in mind that ‘nature’ did not mean to
antiquity what it means to us who are under the influence of evolution. "9 He“
taught “that no current hypothesis is reliable, as ideas and legal philosophiesl
change radically and frequently from time to time.”‘°

Pound also proclaimed: “I am skeptical as to the possibility of
absolute judgment. By the time of Pound, the teaching that law was based
upon absolutes was gone. Blackstone was merely an interesting antiquity to
be studied in an elective course on jurisprudence.

Under Langdell’s application of evolution, the Constitution itself
becomes a document that is at the disposal of the opinion of judges. Harvard
law professor Laurence Tribe, an influential constitutional spokesman who is
often cited by the Supreme Court in its decisions, writes that “the constitution
is an intentionally incomplete, often deliberately indeterminate structure for
the participatory evolution of political ideals and governmental practices.

As such, Tribe writes that “the highest mission of the Supreme
Court, in my View, is not to conserve judicial credibility, but in the Constitu-
tion‘s own phrase, ‘to form a more perfect Union’ between right and rights
within that charter’s necessarily evolutionary design.”“’ A Constitution
which is called a “living" or evolving instrument, is then what the Supreme
Court says it is.

 

[Idolater]

[MENTION=20423]ffreeloader[/MENTION] you need to edit these and use the "[spoiler] /[/spoiler]" tags please. They make 'wall of text' posts better.

 

[ralfy]

Carbon tax leads to carbon trading, which actually benefits financial speculators who control the global economy.