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Author Topic: 2012 Elections  (Read 35660 times)

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Markalot

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Re: 2012 Elections
« Reply #30 on: December 21, 2011, 06:35:07 PM »

Quote
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000), was a case heard before the United States Supreme Court. It ruled that a policy permitting ....

Policy policy policy policy

From your previous example...

Quote
... Principal Coupe, who maintained control over all aspects of the graduation ceremony,

Also an important distinction.

Back to this case.

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Biery ruled that students can express their religious beliefs in speeches, but cannot call the crowd to pray or deliver a message considered a prayer.

So what is a prayer?  He tried to go on to define it.

Quote
    Judge Biery’s ruling banned students and other speakers from using religious language in their speeches. Among the banned words or phrases are: “join in prayer,” “bow their heads,” “amen,” and “prayer.”

    He also ordered the school district to remove the terms “invocation” and “benediction” from the graduation program.

    “These terms shall be replaced with ‘opening remarks’ and ‘closing remarks,’” the judge’s order stated. His ruling also prohibits anyone from saying, “in [a deity’s name] we pray.”


Now tell me something.  If a student calls for other students to bow their heads, what religion are they promoting?  Is the school or any official of the school demanding that people get religion during this event?


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


That's it.

http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution

Basically you have to show that a policy does harm ... for example, if a school insists on a prayer at graduation, and that school is publicly funded, then it does harm by ignoring non-religion.  So what standing did Biery have to rule that a non sanctioned prayer by a student during a graduation was, in effect, illegal?

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Zafer Kaya

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Re: 2012 Elections
« Reply #31 on: December 21, 2011, 11:48:37 PM »

You are arguing the merits of the case which is an entirely different thing.  Decisions on standing are not based on the merits. You can't presuppose that the ruling is wrong and then go back and argue standing.  Essentially you are saying that judges have to rule a certain way decided by voters or Congress or you can totally ignore their rulings without punishment because they didn't have the authority to make it.  Which pretty much eliminates the whole point of having a judicial branch.

Do you see the distinction dirk and I are trying to make?  Your problem really stems from the fact you disagree with the court's holding.  But
IF a judge believes that an action would violate the constitutional right, the proper action is to issue an injunction.  And if that injunction is to have any meaning, there has to be a way to stop you from disobeying it.  Which is why the judge is empowered to grant injunctions and other court orders, and why disobeying those things is cause for contempt of court or obstruction of justice, and why you can go to prison for it.

In short, he has standing because that's his job.  People come to him asking for injunctive relief based on alleged violations of constitutional rights and he decides whether or not to award them.  Unless you want to go and toss out every case since Marbury v Madison, Biery unquestionably has standing to hear the case, to rule, and to issue an injunction preventing a violation of the constitution if he decides that is what is happening. 

SOMEONE HAS TO DO IT.  Yes, it's a scary power but that's the nature of the beast.  Gingrich's solution doesn't get you out of the "Who watches the watchmen?" paradoxes.  It just substitutes Congress for the judiciary in the role of watchmen.  He's talking about issuing subpeonas and arresting people for disobeying them.  So... same thing.  The subpeona's coming from Congress instead of a judge is all.

Also, you're missing the precedent being set by the court cases I cited.  I'm not saying the facts of this case are the same and the decision is controlling.  I'm saying those decisions pretty clearly set a precedent that there is a point at which a student's right to free speech and freedom of religion conflicts with the Establishment Clause.  So there definitely CAN be something illegal about student prayers.  And religious speech led by students can certainly be considered unprotected speech (although you could make the distinction that the speech is still technically protected by the first amendment as all speech is, but that the protection is trumped by the Establishment Clause).

What constitutes a "prayer" and under what situations that prayer can be considered "sanctioned" by the school is the question.  So yes, Biery tried to give a definition of what is sanctioned, and what is "prayer."  Which is exactly what he should be doing, following precedent.  He's recognizing both the Establishment clause and the Freedom of Religion and Freedom of Speech parts of the Constitution and trying to draw a boundary as to when one overrules the other. 

Maybe he drew the line badly.  But that's okay, because his decision clearly indicated the precedent for the case, the facts upon which the case hinged and his interpretation of those facts according to the constitution and prior holdings, and the exact words/actions he found violated the Constitution.  Which makes it easy for an appellate court to review his findings and reverse and/or modify them as needed.  Which is what happened.

And I mean, even though he got overruled, it was still 2-1 rather than unanimous.  And I didn't find the appellate court's written decision particularly harsh.  I've seen a lot worse.  It was pretty much a run-of-the-mill case other than Gingrich disagrees with it and wants to impeach the guy completely rejigger our system of checks and balances over it despite the fact that the courts ultimately gave him the resolution he wanted.

Markalot

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Re: 2012 Elections
« Reply #32 on: December 22, 2011, 07:50:12 AM »

Quote
I'm saying those decisions pretty clearly set a precedent that there is a point at which a student's right to free speech and freedom of religion conflicts with the Establishment Clause.  So there definitely CAN be something illegal about student prayers.  And religious speech led by students can certainly be considered unprotected speech (although you could make the distinction that the speech is still technically protected by the first amendment as all speech is, but that the protection is trumped by the Establishment Clause).

No, I think this is incorrect. :)  A students speech is NOT limited, the school has limits but not the student.  Yes, there can be something illegal about a school sponsored student prayer ... but there is nothing illegal about a student saying a prayer.   The so called establishment clause never ever trumps an individuals free speech rights.  Both cases you gave as examples dealt with either a policy that was correctly identified as illegal, or someone thinking they had free speech rights when they did not.  

As far as enforcement, I think it's ok for the judge to tell the school to set a policy and to 'punish' the school if they don't, but it's not ok for the judge to tell the students what they can and cannot say and threaten that if they sneak any of these words into a speech they will most certainly be punished and threatened with jail time.

Now let's be clear on this ... I have NO IDEA what Gingrich is thinking or how far he would carry this.  These are my understandings, not his.  I'm simply saying that if he singled out this judge _because_ of this particular case I can understand why.

Quote
It was pretty much a run-of-the-mill case other than Gingrich disagrees with it and wants to impeach the guy completely rejigger our system of checks and balances over it despite the fact that the courts ultimately gave him the resolution he wanted.

I agree with this, the system did work, but I still think the judge should be impeached since, in my mind, he obviously does not understand constitutional rights.

« Last Edit: December 22, 2011, 07:59:16 AM by Markalot »
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Markalot

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Re: 2012 Elections
« Reply #33 on: December 22, 2011, 10:44:47 AM »

George Will mostly agrees with you as far as letting the system work.

http://www.washingtonpost.com/opinions/gingrich-the-anti-conservative/2011/12/20/gIQALq8CAP_story.html

I don't think George Will is a big fan.  :)

Gingrich, the anti-conservative
By George F. Will,

When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, “People like me are what stand between us and Auschwitz” [Atlanta Journal-Constitution, Jan. 16, 1994]. What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich’s epiphany about judicial tyranny occurred in 2002, when a circuit court ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation “under God.” Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court’s “under God” nonsense.

So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.

Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.

Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.

Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.

Although not a historian, Gingrich plays one on television, where he recently cited Franklin Roosevelt (and Jefferson, Jackson and Lincoln) as “just like” him in being “prepared to take on the judiciary.” Roosevelt, infuriated by Supreme Court decisions declaring various progressive policies incompatible with the Constitution’s architecture of limited government, tried to “pack” the court by enlarging it and attempted to purge from Congress some Democrats who opposed him. Voters, who generally respect the court much more than other government institutions, reelected those Democrats and so thoroughly rebuked FDR’s overreaching that Congress lacked a liberal legislating majority for a generation.

To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents.

Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

Atop the Republican ticket, Gingrich would guarantee Barack Obama’s reelection, would probably doom Republicans’ hopes of capturing the Senate and might cost them control of the House. If so, Gingrich would at last have achieved something — wreckage, but something — proportional to his swollen sense of himself.

(Disclosure: This columnist’s wife, Mari Will, is an adviser to GOP presidential candidate Rick Perry.)

georgewill@washpost.com

© The Washington Post Company
« Last Edit: December 22, 2011, 10:47:07 AM by Markalot »
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dirk

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Re: 2012 Elections
« Reply #34 on: December 22, 2011, 11:04:57 AM »

No, I think this is incorrect. :)  A students speech is NOT limited, the school has limits but not the student.  Yes, there can be something illegal about a school sponsored student prayer ... but there is nothing illegal about a student saying a prayer.   The so called establishment clause never ever trumps an individuals free speech rights.  Both cases you gave as examples dealt with either a policy that was correctly identified as illegal, or someone thinking they had free speech rights when they did not.  
While I want you to be right, unfortunately, you aren't.  The SCOTUS has limited students speech while in school.  One example is Hazelwood v. Kuhlmeier. This example deals with newspapers, but I believe the basic premise would still apply here.  The graduation is not a public forum for student expression, so it can be censored.   

Take for example if a student wanted to show a nude picture during their speech.  Assuming this is a tasteful nude, it would definitely covered under the 1st Amendment, but the school still has the legal right to censor that speech.  I am sure the school had to approve the students speech beforehand (every school I have ever heard of reads and approves the students speech beforehand).  They will then tell the student to change anything objectionable.  Why would this same censorship not apply to religious speech?  Therefore, by allowing a speech that is religious, the school is actually approving the religious message and therefore violating the first amendment.
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Zafer Kaya

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Re: 2012 Elections
« Reply #35 on: December 22, 2011, 11:24:37 AM »

You've misread the case.

The plaintiff in this case was an agnostic student.  The defendant was the school district.  The plaintiff asked for injunctive relief against the defendant to prevent them from violating his rights under the Establishment clause.  The judge ruled for the plaintiff and granted the relief by ordering the school to (among other things) prohibit the use of certain terms in a graduation speech.

At no point in the holding does the judge ever threaten to send students to jail for giving a prayer at a graduation ceremony.  Nor would it happen.  The court order applies to the school, not the student speech giver.  In other words, the court is saying to the school "You can't do this."  Which is exactly what the courts did in all the other cases I cited.  So you don't need to worry about some crazy new precedent being set here.

And I haven't really been fussing about it, but if you really want to get down to legal brass tacks, you're not using the term "illegal" correctly.  "Illegal" implies a criminal charge and this is a civil case.  

And while I'm at it, something in print is libel not slander.  And libel is NOT protected free speech.  And courts CAN issue injunctions pre-prevent someone from saying/printing something.  They don't like to do it because of concern over free speech chilling effects so it's rare occurrence, but it does happen.  

Also, Dirk is right that student speech in schools does not enjoy the same First Amendment protection as other speech. The Hazelwood case he mentioned is an often-cited example.  Bethel School District v. Frazier is another.  Those are both cases you have to learn in first-year Constitutional Law.  There are a bunch of decisions governing school dress codes.  And the cases I already mentioned.  I don't agree with many of them, but I find it hard to criticize a judge too harshly for following precedent. 



Zafer Kaya

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Re: 2012 Elections
« Reply #36 on: December 22, 2011, 11:42:04 AM »

George Will mostly agrees with you as far as letting the system work.

Yeah, stepping aside from the whole legal debate that is why I think Gingrich just totally screwed himself.

It's not just George Will.  I saw Bill O'Reilly hammer Gingrich on it as well.  And there's no shortage of powerful conservatives who are lawyers or judges or ex AG's for conservative administrations who are going to think this is stupid as well.  The guys on Volokh Conspiracy don't seem too happy either.

He overplayed his hand, as usual.  If he had just delivered a rant on "activist" judges and said that he was going to be extremely active in terms of vetting appointed justices and that judicial decisions need to be tracked and monitored or perhaps even that justices should no longer serve life tenure I think he would have scored big points.  

But when you talk about arresting judges, you're just coming on way too strong and immediately raising the attacking the whole libertarian framework at the heart of conservative philosophy.  You can't do that.  Even the craziest far-right nutjob believes in that libertarian framework, despite advocating many distinctly un-libertarian policies.  They'll massively distort facts and arguments to force fit the libertarian construct rather than abandon it.

Which is what Gingrich tried to do with his whole "No, I'm not putting the executive above the judicial, I'm making them equal!" spiel, but he didn't deliver it well.  The white paper he wrote isn't actually that bad.  But his personal responses when questioned were terrible.  He was all red-faced and Gingrich-y looking and he came across angry.  No conservative wants to see an angry government guy talking about arresting people.
« Last Edit: December 22, 2011, 12:03:48 PM by Zafer Kaya »
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juggles

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Re: 2012 Elections
« Reply #37 on: December 27, 2011, 09:11:29 PM »

Gingrich Plummets in Polls as Voters Start Remembering Who He Is http://www.borowitzreport.com/
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Zafer Kaya

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Re: 2012 Elections
« Reply #38 on: December 28, 2011, 11:53:53 AM »

Gary Johnson is running as a candidate for the Libertarian Party now.

Good for libertarians.  I'm sure they're happy to have a candidate on the ballot for their party.  And someone to vote for who is actually a REAL libertarian (ie. not Paul, not Barr).

Hell, I might even vote for Gary Johnson.

iconoclast420

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Re: 2012 Elections
« Reply #39 on: December 29, 2011, 01:04:01 PM »

Gary Johnson is running as a candidate for the Libertarian Party now.

Good for libertarians.  I'm sure they're happy to have a candidate on the ballot for their party.  And someone to vote for who is actually a REAL libertarian (ie. not Paul, not Barr)

I'm happy about it, hope it makes the national network news tonight.

The Libertarian party chooses it's nominee at the national convention by the state delegations rather than by primary elections. You will have to watch the national convention on C-SPAN to see who wins.
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Markalot

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Re: 2012 Elections
« Reply #40 on: January 04, 2012, 10:25:46 AM »

I am guessing here but...

Bachmann and Perry should drop out today and tomorrow.  New Hampshire will be a contest between Romney and, well, no one.  Gingrich might gain some traction but not much, and the rest of the field has no chance.  Huntsman should drop out after NH, Gingrich and Santorum will stay till SC then one will drop. 

I'm not even going to hazard a guess about Ron Paul.

Romney will be the candidate, IMO, but I still think he loses to Obama, especially if the economic recovery picks up. 
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Kenneth Toilethole

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Re: 2012 Elections
« Reply #41 on: January 04, 2012, 12:59:48 PM »

I really think Romney made a terrible move strategically by getting in the mud with Gingrich. I'm pretty sure Gingrich's number one goal now is to make sure Romney doesn't get the nomination. He's basically become Santorum's #1 cheerleader. And hell hath no fury as a Newt scorned. He may not be able to keep the nomination from going to Mitt, but I wouldn't be surprised to see Newt make attacks that wound Romney into November.
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Markalot

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Re: 2012 Elections
« Reply #42 on: January 04, 2012, 01:16:38 PM »

Which is perfect, really.  I don't know about you but I prefer a divided government, and not divided like it is now where nothing gets done.  I'd like to see the repubs take the house and senate while Obama stays in the WH, then there's no hiding behind obscure doors.  Republicans have to pass things the public supports and Obama either signs or vetos.  With a veto the repubs have to get enough votes to override.  It's nice and simple and we can have some real compromise.   It worked very well with Clinton, I think it can work well with Obama.
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Butter

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Re: 2012 Elections
« Reply #43 on: January 04, 2012, 01:37:14 PM »

Back when Clinton was prez, the GOP seemed capable of compromise.  Now, they seem utterly opposed to it.  Anything that smells like compromise actually seems to equal weakness for them.
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Kwyjibo

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Re: 2012 Elections
« Reply #44 on: January 04, 2012, 01:45:10 PM »

Back when Clinton was prez, the GOP seemed capable of compromise.  Now, they seem utterly opposed to it.  Anything that smells like compromise actually seems to equal weakness for them.

I'm sure they would disagree with you.    ;D
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