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We may have reached a new low. While the right excoriates Dick Durbin for, er, apparently for opposing torture, this one managed to slip under their delicately tuned critical compass: Here is California Republican Randy"Duke" Cunningham's justification for passing the nonsense known as the Flag Burning Amendment:"Ask the men and women who stood on top of the (World) Trade Center. Ask them and they will tell you: pass this amendment." Out of craven political opportunism, this man is claiming to be able to divine the political stances of the victims of 9-11. (Tip of the mouse to Andrew Sullivan.)
But here is what gets me about the Flag Burning Amendment: It is being supported by the same types who argued that the Koran is"just a book," as if that somehow justified doing damage to a book that is nonetheless freighted with tremendous symbolic value. It is also more than a bit telling that people who constantly whine (wrongly most of the time) about supposedly liberal judges"legislating through the courts" want to take the foundational document of our republic and pass legislation in the form of an amendment. Galling. Just galling. It is actually these people who hate the United States and all of the values that we try to represent.
Jason --
Fair enough. But the fact is, the specific example fits perfectly into our model. I will give you the benefit of the doubt that you are not racist, but the "unaccountable, activist judges" in the federal courts and on the Supreme Court are the ones who often prevented Mississippi and Alabama from being able to have their own form of law. When you fall into rhetorical traps, such as uncritical use of terms such as "unaccountable" and "fiat," don't then play a naif so that when specific examples come up in which race or gender or sexuality are a factor and challenge the precious dogma of "accountablity," you can play the wounded soul. If historical examples make you uncomfortable, I am sorry. But the very judical system you seem to want to pillory was often the last step between the will of the democratic majority and then Constitutional rights that sometimes trump that will. It is because race, and the attendant legal history surrounding it, is such a powerful example that you ought to be more critical of your shallow labels, not portray a wounded sense of feigned hurt that will allow you to close yourself off in a bubble and not have to challenge your received wisdom that has you using those labels to begin with.
The question still stands -- do you believe that judges such as John Minor Wisdom or Frank Johnson at the federal level were right in chellenging local courts, or do you think they were wrong? Just because race is a flashpoint does not mean we get to avoid substance that might make us look bad. If the question makes you uncomfortable, maybe you need to question some of your answers. There is nothing illogical about asking you to make a stand. If you are going to insist on your simplistic view of "accountability" and "unelected judges" and "fiat," than I am going to give you examples that provoke discomfort. If that discomfort puts you into an ideological camp the beliefs of which you know is wrong, whose fault is that? It is no more of an accusation for me to ask you about specific cases of these so-called activist judges than it is for you to impugn an entire branch of the government as having no sense of responsibility to their profession or to the Constitution. This is precisely what you do when you use the labels that the radio hosts have formed without any sense of historical, legal, or Constitutional responsibility. If our standards here are higher than that, I make no apologies, even if in so challenging your use of labels, you believe your "speech" has been chilled.
Yes, it would be nice if people would step back and take a deep breath, but one does not get to decide that they can use whatever loaded terms they want, and then when called on it, the breathtaking ought to begin. You do not get to draw those lines Jason. You certainly do not get to draw them here.
dc
Jason Nelson -
6/23/2005
I am giving you the benifit of the doubt, I like you. Please do not imply that I "might" be a racist. For the record, I am not. Or course anyone would say this, but I will defend myself on this point whenever necessary.
I will be happy to discuss my viewpoint of the judicial, but only if I am certain that this is not an attempt by you to chill my speech by implying that I am a racist. If all who oppose your brand of judicial activism are going to be considered racist by you because of the race issues in Mississippi, than there is no reason for the two of us to have any sort of logical discussion.
By the way, I am not in favor of the flag burning ammendment. I just thought that your generalization was unfair. And the "Duke"'s comments, also ridiculus.
I wish everyone...would just take a deep breath.
Derek Charles Catsam -
6/23/2005
But Jason, if you don't like the way judges are appointed, you need to change the Constitution. Go look at Article III. If you have such disdain for the Constitution (and the Judiciary Act of 1789, inter alia), that is your problem. And of course judges are "accountable" in numerous ways. To each other, for example. To the law. They can be removed with cause. The idea that judges are not accountable is as false as the idea that judges rule by fiat or that they ";legislate." these are terms, like "activism" that people use when what they actually mean is "the court is doing things that i do not like." Conservatives seem not to realize that the conservative justices of recent years are among the most activist in American history. i do not see them complaining when the court begins to undo 50 years of federalism rulings in one or two fell swoops. But i suppose that is "good activism."
As I have said, I am glad that we have judges who are not held to the whims and bigotry of democracy. I am working even as we speak on a case of southern school integration where the 5th Circuit stepped in to stop a whole range of legal chicanery by local and district courts in Mississippi. Had those 5th Circuit Judges been elected, black men and women would not have gone to college in Mississippi anywhere near as quickly as they should have. Perhaps you are ok with this. As for me, I think the "accountable" court was the federal one, and later those unaccountable Supreme Court justices who agreed. I suppose you believe it would have been better to have let the will of Mississippi voters decide. But if you do not like the way separation of powers was put together, by all means, rally to change it. Good luck. Maybe the victims of 9/11 are with you. You'll have to ask Duke Cunningham about that.
dc
Marc "Adam Moshe" Bacharach -
6/23/2005
Derek,
Good points about this whole flag burning amendment. In general, I have a problem with passing any law, let alone a Constitutional Amendment, without any apparent catalyst. In other words, is there any reason to believe that society will be worse off without the amendment? Is flag burning really a problem in this country? I certainly don’t remember seeing any flags burned INSIDE the US for years (I do recall seeing countless crosses burned by the KKK but this legitimate problem seems immune from Congressional or Constitutional redress).
It is the same with the movement to amend the Constitution to allow foreign born Americans to run for president. Why? Is this a genuine problem that needs to be addressed? Are there scores of qualified and popular political figures whose political ambitions are thwarted by the current Constitution? If so, I have seen no evidence of their existence, save for one Governor of California that would never get passed a Republican primary anyway.
Ditto with proposed amendment to ban gay marriage. Again I ask, why is this necessary? Haven’t the states dealt with the issue pretty thoroughly?
Back to flag burning, aside from contradicting the 1st Amendment, which clearly protects speech, assembly, and petition, what right does the government have to tell me what to do with my own property? If I run to the store and buy a flag, a bible, a Koran, and anything else you like, those things belong to me and I should be able to do with them as I please without having to fear hurting the sensibilities of anyone. To use a popular expression, this is a free country.
As for the judiciary deciding what the Constitution does and does not mean, everyone likes it when they agree with our ideology and hates it when they disagree (although certainly conservative are without question better at generating contempt and mobilization over court decisions). This case is no different.
Jason Nelson -
6/23/2005
If you dont like the actions of the unelected Secretary of State, in 3 years make sure a Democrat wins the presidency. Not directly elected, yet accountable. Certainly you see that distinction.
Derek Charles Catsam -
6/22/2005
Jason --
I do not understand what the hypotheical quotation has to do with what I wrote. You'll have to clarify. if you can show me some parallelism between the two things (as I do with the idea of something being merely a symbol) and then can show in some way shape or form that there is a common constituency, then i will rephrase. As it is, your analogy is ill-founded.
Once you used the term "judicial fiat" you belie your other argument. You do know what a "fiat" is, yes? Judicial review has been part of the process since Marbury v. Madison. It is no more fiat for judges to do their job than it is for any other branch to do its.
But surely using the Constitution to pass what is, at essence, a matter of legislation, must bother you, no? Or do you think that every time you find something in society you do not like, we should run and entrench it into the document that we have only amended 26 times, 16 of those after the Bill of Rights. If it can clear all of the necessary hurdles, it will still be a mistake. In any ase, the burden is, as you say, on these people to steward it through. lord knows nothing stupid has ever gotten into the Constitution before.
But at least we now know what the folks on the Twin Towers would have wanted.
I've also never understood the "unelected judges" argument. That has been how we choose federal judges since the beginning. People who hate the judicial branch toss in that "unelected" as if it is an indictment. It might be useful for those people to go look at the first three articles of the Constitution. I for onwe am glad that at least one branch exists that is beyond the potential tyranny of the majority. So, apparently, were the Founding Fathers.
In any case, I see that unelected Secretary of State is off representing America by fiat! (See, now I can demogogue too!)
dc
Jason Nelson -
6/22/2005
Derek,
I respectfully submit that you are being unfair. Would you not take issue with me if I made this statement(I am not making this statement, only using it to make a broader point)
"Those who are so worked up over the torture of our sworn enemies in Gitmo are the same types who have no problem with the brutal dismemberment of a human fetus in a partial birth or "late term" abortion."
Im sure you would consider this statement unfair and overly broad, and I would agree with you. Perhaps you should be more cautious with some of this type of generalizing.
On you attempt to equate the changing of the constitution by judicial fiat with the ammending of the constitution by explicit procedure that is spelled out in the constitution is weak. If this ammendment can pass the high hurdles set up by the founders, than the Republic has spoken. Without this process we wouldn't have had prohibition, nor equal protection, we wouldnt have the income tax, nor presidential term limits.
For an unelected and unacountable judge to change the constitution in all of his wisdom certainly is a different process than what is happening now.
If you don't agree, oppose the ammendment. The burden is clearly upon those who wish to change the document. It will work as it is supposed to work.
