But the whole purpose of judicial review is to guard against the possibility that the two popularly-elected branches could collude. And, as I pointed out, in extreme circumstances the two popularly elected branches CAN end-run the judiciary. They just need 3/4 of the states to agree to do it. I'm just curious. Which action of the judiciary has aroused your ire? Among the actions of the judiciary that I've always thought were kind of okay were: 1. Eliminating racial segregation 2. Protecting the voting rights of minorities 3. Protecting workers' rights to organize 4. Assuring that all the rights guaranteed by the Bill of Rights apply to all the states (equal protection) 5. Enforcing equality in education 6. Protecting the rights of consumers to have recourse against corporations 7. Protecting the rights of people with developmental disabilities to be educated 8. Limiting police powers (like, for example, not allowing someone's stomach to be pumped against their will) And those are just off the top of my head. You will note that every one of my examples involves redressing the denial of rights to a minority or group with less power by the majority or a group with more power. I also can't help but note that this is a particularly amusing discussion to be having at a time when one branch - the legislative - is setting historical benchmarks for ineffectiveness.
I sometimes wish I were older, so I could remember when politicians were able to work together and compromise.
The sad thing is the polarization between the two parties ultimately benefits the parties themselves and not the populace, but so many people still buy into their chosen side, like it's a religious affiliation or a sports team, and they just rally behind whatever their team want to do.
The problem is that both parties have moved away from the center and have become more extreme. The parties are focused more on 'energizing the base' than 'winning the center.' Just look at the feelings people have toward the opposing party: We are so much more partisan now than we've ever been. During and after WW2, the US was united and that 'glue' from a war-weary US is now loosening because the generation that lived then is leaving leadership to the Vietnam-era baby boomers. The good thing is that I don't think the two parties can get anymore divided than they currently are. (Hey, look at me, I'm an optomist!)
Likewise, the whole purpose of a legislative review would be to prevent the tyranny of the minority and the whole purpose of an executive review would be to prevent that loss of insight which occurs when too many chefs are in the kitchen. If we need the judiciary to have powers not explicitly provided to them in the Constitution, we have the ability to create amendments. Again, this is akin to saying "the trap can't be that bad, because the cheese is tasty".
I'm not sure it is polarization of the parties that is the problem. I think we're seeing growing class warfare and a redrawing of the class warfare lines. It used to be that we thought of Republicans as higher economic class and Democrats as lower economic class. Now, we're seeing Republican and Democrat parties splitting into upper and lower classes. I'm hoping that the lower class Republicans and Democrats will unite because the upper class Republicans and Democrats are already uniting. But, to keep it from happening, the upper class is doing everything it can to keep the lower class from uniting - including machine gunning a lot of political pablum. That's what's causing the polarization. The open question is how long will it last.
Excellent point. While it's true that the two major parties have become more polarized, it is also true that the issues that draw the most attention from both parties, and which are the subject of the most intense debates, are those which have relatively little importance in the overall scheme of things. I won't mention specific issues because someone will take up those very issues and hijack the thread with them. When I was a graduate student, I studied for a time under Henry Paolucci, who at the time was vice chairman of the New York State Conservative Party and who ran as a 3rd party candidate in the 1964 Senate race between Robert Kennedy and incumbent Kenneth Keating (he ran because Keating, along with other New York Republicans, would not support the Republican nominee for President, Barry Goldwater, aka Mr. Conservative; so, you see, there really was a time when there was such a thing as a liberal Republican; he also wrote a seminal work, entitled War, Peace and the Presidency). He had a theory, amusing while at the same time making a point, that Richard Nixon had never actually been president, because on the night he resigned, he said that he had sworn an oath when he became president to further the cause of world peace; of course, he had also taken an oath to preserve, protect and defend the Constitution of the United States when he became president, and as we all know, an oath taken with a reservation is no oath at all. The Preamble of the Constitution lists 6 things that we consider worth going to war over, that is, more important to world peace, so Paolucci's theory was that Nixon, in elevating world peace to equal or greater importance to the six things in the Preamble, really didn't swear to preserve, protect and defend etc, etc. Therefore, he never took the oath of office, therefore he never was president. I mention this story because of the six things in the Preamble, which I don't think we pay enough attention to. But we should, because it would eliminate a lot of crap (technical term) from our politics. For the record, the six things are: form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
...and it is the gross misunderstanding of the 'general welfare' clause that has helped bring our country to where it is now. What it means is that the Constitution and powers granted to the federal government are not to favor special interest groups or particular classes of people. There shouldn't be any privileged individuals or groups in society. The federal government was not meant to favor the minorities or the majorities. Rather, the Constitution promotes the “general welfare” by ensuring a free society where free, self-responsible individuals - rich and poor, bankers and shopkeepers, employers and employees, farmers and blacksmiths - enjoy “life, liberty, and the pursuit of happiness,” rights expressed in the Declaration of Independence. Thomas Jefferson wrote: The 'welfare' was always meant to be 'general' as in non-specific. At some point, the government started telling us what size soft drink we could have. I think the founding fathers would think our current government an abomination.
Well, sure. Sounds great. And if we still lived, as did the founders, in a land at the dawn of industrialization, where most people worked the land (except for those who had slaves to do it for them), in a place in which the land was virtually limitless, where tenant farming was just something that existed in "the Old World" and there was not yet a new, wider, deeper and eminently more pervasive exploitation to take its place, and the only perceived threat to national security was a scattered, partially armed aboriginal race that had already started toward extinction but just didn't know it yet...well, then assuring life, liberty, et al without having to do much to assure it would work just fine. But we are not that country. We have moved out of the single most prosperous era of our history - the post-WW2 period. It was never going to be possible to sustain that level of prosperity indefinitely, but in the wake of the collapse of the Soviet sphere, we have seen an overall decline accelerated by participation in several debilitating (and in some cases, stupidly fought) foreign wars, a relentless erosion to our industrial base, increased fraudulent financial dealings, rapidly increasing disparity between the highest and the lowest economic earners. So, promoting the general welfare now is going to be a much more complicated and daunting task than it was in 1789. Issues like government telling us what size soft drink we can have are a lightning rod to draw attention away from the important issues. They get away with it because we let them.
It's not a distraction, it's a precursor of what's to come. The government is going to take control of more and more of our private lives in the name of 'general welfare.' This is how it has to happen. This government will become more and more over-reaching until we reach the point where we say 'enough is enough' and we rise up and do something.
100% incorrect. While you're fighting the battle of the supersized soft drink, the corporations who fund the campaigns that keep those folks in power are busy selling your country out from under you, lock, stock and barrel. And by the time the general populace figures it out, there won't be anything left to "rise up" against. We have tax laws that reward corporations for sending jobs overseas. We have an electoral system that is wholly dependent on money and a campaign finance system that is rigged in favor of corporations and the tiny minority of the population that control them, profit from them and send their children to run them. And the media foofs who do their bidding are all too happy to get you jacked up about the Guatemalans who mow your lawn, but pull the wool over your eyes when jobs that used to keep millions of Americans gainfully employed are now firmly planted in Mumbai. The issue isn't how big or powerful government is. The issue is whose interests that government will protect. But if you think your hope for a better life and a better country lies with a weaker government, you may want to examine the economic history since 1991, which was just about the time the capital class decided they didn't need the middle class anymore. It ain't pretty.
I'm unaware of the original topic, so I'll just respond to what I see here. The "Schenck v US" case is both unique and a travesty in itself. Firstly, the fact one can't yell fire in a crowded theater is because by doing so: you're costing other people the money they paid to watch what they came to the theater, someone could get injured, and as well costing the owner money by doing so. Secondly, Holmes actually changed his perspective on this. Such as this, Holmes, Dissenting Opinion in Abrams v U.S.. Particularly read the final paragraph. Likewise, as argued here: It's Time to Stop Using the 'Fire in a Crowded Theater' Quote Thirdly, a larger problem with regulating speech per any manner whatsoever is this: speech is itself arbitrary both in concept & practice but is always capable of offense. It's rather impossible to not find offense in something out there, unless you're just a dumbed robot.
And yet, Holmes pointed out in the very dissent you quote that he had no doubt that the matter of law decided in Schenck was correct. Moreover, the "clear and present danger" standard established in Schenck has never been withdrawn by the Court. The point of all this was to illustrate that there are no absolute freedoms in a orderly society based on the rule of law. Schenck is just one example of that notion in practice. In that context, I'm not sure what you are trying to say with your post. That you believe that your exercise of freedom should be allowed to extend so far as trample upon mine? Or that mine should be allowed to trample on yours?
Truth is, I'm not worried about SCOTUS rulings. However, either Holmes changed his mind or is just another hypocrite considering his words, while the SCOTUS certainly did narrow their definition of "clear and present" danger at the very least. So by whose authority should we submit to of speech then that we know who shouldn't be offended? Or whose definition of "clear and present danger"? As I said, these things are arbitrary. Every cycle, there's something amiss while someone's offended and another person feels his enemy is defaming him. One's refusal to do business infringes on no one's liberty; the refusal to suffer a fool does not infringe on his ability to live; the pursuit of happiness is only that: a pursuit. It is only violence (the action of coercion) that is not an exercise of one's rights. Edit: furthermore, an old Democrat once said, "My definition of a free society is a society where it is safe to be unpopular." Or well, just go with the whole "one man's terrorist is another man's freedom fighter and vice-versa" thing
Who said anything about being offended? I asked you about the point at which one person's exercise of personal freedom impairs another's equal right to exercise theirs. No answer. Of course they're arbitrary. That's why there are courts. However, assuming that the point I mentioned above exists (and it's very clear that it does), then in an imperfect world, someone has to draw the line of equity somewhere. Being offended is irrelevant. FEELING that one is being defamed isn't enough. But if you can prove that my actions have materially injured you, are you saying you shouldn't be able to seek recompense against me? Because it sounds like that's what you're saying. Nothing earth-shattering there. OTOH, my refusal to allow you to do business with others certainly does. Your real-world-based point being...? That's not nearly as limiting a statement as you seem to believe, since there are many kinds of coercion besides overt violent acts. Moreover, it isn't actually true, even in its wider meaning. It's the "only" piece that gets you into trouble. I'll agree with the Adlai quote, but your "one man's terrorist" bit is something I'm pretty sure old Adlai wouldn't have agreed with at all. Moreover, it isn't true (but that is way beyond the scope of this thread, so let's just agree to disagree).
Exactly my point; defamation does not materially hurt anyone. Defaming someone does not refuse someone the ability to do business. What does refuse someone the ability to do business is requiring paperwork. Etc. This idea people conjure up about how their rights are infringed by not being fed or clothed by others. It is no one's job but your own to make sure you're well-fed and clothed. I did not focus on the limiting definition to begin with, as I was very clear. Coercion is the key. There is no infringement when you hurt someone's feelings, refuse to support them, or cheat on them; there is no infringement when you don't do business with them, refuse to buy a product. What is wrong, and a clear violation, is when you force someone to accept your views, when you force another to shut their mouth just because it 'may' hurt your business or force them into doing business your way, when you take another's life or force them to live against their will, and so forth. Your soldiers, your police officers, the NSA - all of these are terrorist groups to many by definition. They do in fact terrorize others (police and intelligence agencies especially). Yet people call them freedom fighters, solely because of this concept they somehow protect you. Know who else is a freedom fighter? Osama bin Laden, embraced by an Arab world, while folks in the west call him a terrorist. It's hypocrisy of the highest order to not admit as much, and I am not worried about whether Aldai would agree or not since his agreement or not does not change why I quoted him. More to the point: everyone has the option to believe or not believe whether you're lying when you defame me. Should you be allowed to take me to a private-arbitrary court? Maybe, but by no means should it be criminal.
You obviously have never worked in a field in which one's record and reputation are vital to doing business. And, no, I am not going to explain to you what those might be. See the above. No, what "refuses somebody the ability to do business" in such cases would be their refusal to acknowledge that the public - you know, as in res publica - have a right to be protected from predatory business practices, from having their environment defiled, or their family, friends or neighbors killed by unsafe practices. An argument that completely falls apart when the ability to feed and clothe oneself has been denied, as through disability at birth. You run a restaurant, very well known, very successful. 5 star reviews, and all that. I circulate a story on the internet that you use rat meat, accompanied by a short video of scurrying rats that looks like it was taken in your restaurant. It goes viral. Your business plummets. You don't think you should have recourse against me??
Yes. Of course defamation can cause material harm. As I recall, in many states you can't even recover for certain types of defamation unless you prove actual damages, so demonstrating a direct financial harm is necessary (for example, someone who loses their employment due to defamation can claim that lost income as damages). Imagine a teacher, working with small children, subject to a defamatory claim of pedophilia, not only losing a job but being unable to continue in the profession. It's no accident that defamation has been recognized as actionable for so long.
No, at best, defamation causes theoretical damage. There is nothing material about business you don't even have. There is nothing predatory in voluntary transaction. If people feel they are the victims of predatory business practice, they are always welcome to walk-away except where government is concerned (it is only through government, wherein one is forced to operate by threats of violence) and same is for those who choose to practice unsafe practices. We have a word for people that willingly accept a predatory practice or willingly go through with something unsafe: fools. It is your job to look after yourself, not mine nor anyone else's. (Furthermore, what is or isn't predatory is a matter of subjectiveness in any voluntary transaction. Who's to say the real predatory practice isn't when you demand more?) The only time one is denied the ability to feed or clothe themselves is through some sort of disability of sorts, and in that case you are no less right to force another person into clothing/feeding them - especially when you don't physically do it yourself. Not criminal recourse, as it's entirely theoretical damage. You only own the transactions you've made, not the ones you haven't made.
Defamation law is a very tricky subject, and is not to be taken lightly. While I agree with some of what Cydramech says, I don't agree that there shouldn't be recourse for people who are defamed. Like Ed said, if your reputation is injured due to someone publishing something false about you, then you have the right to receive compensation through the civil courts. We're not talking about opinions, but statements that are provably false and injurious. I can't accuse the guy behind the counter at 7/11 of being a member of al-queda, if it isn't true, because his reputation would be injured and he would lose business because of it. He then has a right to take me to court for defamation... ...and I would lose.
Sorry, but the 2008 crash gave lie to that statement. Then again, I get the sense that you've not had a lot of real-world experience.
This fallacy ignores the fact that those with power wouldn't commit so many resources into controlling the goverment if the government was weaker.
The problem with defamation laws is the sheer bullshit of them. For example, a provably true statement (such as Mr. X has spent time in a mental hospital) can damage Mr. X's professional reputation. Likewise, a powerful enough defendent can make a provably true statement illegal to say just by paying off the appropriate people. Yes, laws are not just about what happens when the laws are exercised correctly, they -must- take into account what happens when they are abused. Further, many statements can be true, false, both, and neither all at the same time depending on how you interpret the information.
Except, don't they commit those resources for the express purpose of keeping the government weak? To blunt the impact of legitimate regulations? To prevent the elimination of tax laws that provide incentives to move jobs overseas and weaken the home economy? As for your concerns about defamation, for a statement to be defamatory it must be untrue. Your example of the fellow who spent time in a mental hospital is a poor one, because, although true, it violates his right to keep his medical conditions confidential.
It really didn't. The 2008 crash was nothing short of a bank-sponsored project, and the west fell for it like a bunch of tools.
