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Old January 12th, 2016, 07:10 PM   #31
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I see and partially concede your point about reading these early cases nunc pro tunc. For instrumentalists such as yourself, that presents a caution. But in the reality of the leveling effect that the 14th Amendment has invoked in the century since its inception, I cannot see this country ever going back to an antebellum stance on issues involving civil rights.
I believe the direction of our Federal Judiciary will continue to be progressive in ferreting out the spirit of equality, and continue to move away from the personal race, gender and orientation biases of the founders,
much the same as Lincoln did when he invoked the "better angels of our nature" to strike out against slavery, turning to the Declaration of Independence for justification rather than Taney's racist AND instrumentalist Supreme Court.
I agree. As long as the fifty states are joined it will never to back. I don't see the fifty states staying joined though. You are a student of history, and history is not on the side of a nation as divided as this country is, and that divide increases each day. There is one common denominator in all the divisive issues: erosion of federalism.

As an aside regarding Taney, the first time the vested rights doctrine was used after he created it in Marbury was in Scott.
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Old January 12th, 2016, 07:18 PM   #32
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I agree. As long as the fifty states are joined it will never to back. I don't see the fifty states staying joined though. You are a student of history, and history is not on the side of a nation as divided as this country is, and that divide increases each day. There is one common denominator in all the divisive issues: erosion of federalism.

As an aside regarding Taney, the first time the vested rights doctrine was used after he created it in Marbury was in Scott.
I can't argue with any of that.
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Old January 12th, 2016, 07:49 PM   #33
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Barron was an 1833 case involving civil damages against the City of Baltimore. Barron sought monetary compensation from the City in a federal court under the Takings Clause of the 5th Amendment. He won the case, but it was reversed on appeal because, Marshall said, the Bill of Rights at that time was meant only to limit the power of Congress. Therefore Barron needed to refile his claim in a Maryland court.

But FYI, Article VI of the Constitution is not part of the Bill of Rights. It is part of the main body, which preceded the Bill of Rights by as much as two years. Article VI applies expressly to both Congress AND the States, and it clearly says so. And that was the clause used in Marbury to strike down the Judiciary Act of 1789. The Bill of Rights had not even yet been ratified. The Supremacy Clause of Article VI defines the very meaning of Judicial Review.

Oh, and one other thing you failed to mention. Barron, which was argued by Southern legislators as a covert means to prevent slaves from suing their owners in a federal court, has been effectively debunked by 14th Amendment incorporation doctrine, which HAS applied the Bill of Rights to State and local governments for the last century.

You've conveniently changed your [wrong] argument regarding Marbury, thus falling back onto 20th century 14th Amendment jusrisprudence.

Barron clearly shows how incorrect you were as well.

FYI, I know Article VI is not part of the Bill of Rights. Thanks for patronizing though.



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Old January 13th, 2016, 02:14 AM   #34
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The Supreme Court ruling on gay marriage (and all the state courts and lower federal courts that ruled in favor of gay couples) was called "judicial activism" by the opponents of gay marriage.

What is "judicial activism"?

Wikipedia states, "Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law."

So when the court ruled that same sex couples cannot be denied legal marriage per the XIVth Amendment's guarantee of due process and equal protection the right wingers jumped on the court for ruling based on "personal or political considerations rather than on existing law."

I submit that in this ruling the TRUE "judicial activist" was Scalia who dissented in Obergfell v. Hodges. It is true that Scalia was in the minority and thus his dissent was not a "ruling" I still maintain that his vote against gay marriage in this case was based on "personal or political considerations rather than on existing law."

Furthermore Scalia said so himself.

10 years earlier in Lawrence v. Texas Scalia also dissented. In his dissent Scalia wrote, "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

In other words in this dissent Scalia stated that there would be no constitutional basis for denying same sex couples legal recognition of marriage. That there could be no legal justification for doing so. Yet when confronted with this very question Scalia went against his own opinion on the law and voted based on "personal or political considerations rather than existing law." the very DEFINITION of "judicial activism"

So the next time one of the moral majority/Right Wing/windbags cries about judicial activism in the Supreme Court decision on gay marriage, agree with them and point out how it was one of THEIR guys that was the judicial activist.
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Old January 13th, 2016, 02:16 AM   #35
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I agree. As long as the fifty states are joined it will never to back. I don't see the fifty states staying joined though. You are a student of history, and history is not on the side of a nation as divided as this country is, and that divide increases each day. There is one common denominator in all the divisive issues: erosion of federalism.

As an aside regarding Taney, the first time the vested rights doctrine was used after he created it in Marbury was in Scott.
But this nation is not as divided as you think it is. Your brand of political party is dying on the vine. People are leaving the crazies and their anti-secular human and civil rights leaders in droves. You won't win more elections; you will lose. Then your option will be to move to the middle east and defend those christians against the Muslims....or get Texas to secede and live behind a fence we'll put up to keep yawl out.
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Old January 13th, 2016, 07:54 AM   #36
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I have a Juris Doctorate from an ABA certified law school. What is YOUR legal background?
Whoa now! You need a JD to understand law? If that be the case, why did 5-Acitivest Judges fail to understand Due Process and it's restrictions? Those clowns are sitting in the Supreme Court!
Do you have a degree in Constitutional, or statute law? How much training did you get in Constitutional law?
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Old January 13th, 2016, 07:59 AM   #37
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Funny how the actual ruling seems to disagree with you...
Tell us how Equal Protection applies to this case?
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Old January 13th, 2016, 08:08 AM   #38
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Whoa now! You need a JD to understand law? If that be the case, why did 5-Acitivest Judges fail to understand Due Process and it's restrictions? Those clowns are sitting in the Supreme Court!
Do you have a degree in Constitutional, or statute law? How much training did you get in Constitutional law?
Let me explain something to you.
There is thing called education as well as experience.
Unless you have MORE training, education and experience in the field of law than the judges sitting on the SCOTUS all you have is a personal opinion and nothing more.

But basically yes, a JD is pretty much essential to knowing more about the law that some joker that does NOT have any training or education in it.
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Old January 13th, 2016, 09:19 AM   #39
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Tell us how Equal Protection applies to this case?
Read the ruling. It's explained there.

Now explain how what Scalia did isn't "judicial activism"
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Old January 13th, 2016, 09:19 AM   #40
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Let me explain something to you.
There is thing called education as well as experience.
Unless you have MORE training, education and experience in the field of law than the judges sitting on the SCOTUS all you have is a personal opinion and nothing more.

But basically yes, a JD is pretty much essential to knowing more about the law that some joker that does NOT have any training or education in it.
I suppose, for a person such as yourself, who has a very limited ability to comprehend the Constitution and it's restrictions, the need to have it explained to you would be a priority.
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