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Judicial Review: What's Your Opinion?Follow

#1 Jan 19 2012 at 11:50 AM Rating: Excellent
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Heh... "opinion" in a topic about judicial review. I'm hilarious!

Actually, I'm an annoying ***. It's come out a lot more since I moved to the south a few years ago... but I swear, it's because Florida keeps doing dumb things. Exhibit A: a Florida bill allowing student-led prayer. The bill mandates that prayer can be led in schools if it meets these criteria:
Quote:

-Directed by the student government of the school.
-Led by students, with no direction by school personnel.
-“Non-sectarian and non-proselytizing in nature.”


On the whole sounds ok by me... except it's specifically to allow prayer at school events (assemblies, games, etc). Due to court cases like Santa Fe School Dist. v Doe (2000), student-led prayer at school events using school property (ie, loudspeakers) and on school grounds is unconstitutional, as it goes from private speech to public speech and thus strives to give the school's seal of approval. The Supreme Court seems pretty clear on this. But my discussions with people on this almost inevitably go like this:

Me: It's a silly case to rule on, but the court gave their opinion about it and they have the final say in constitutionality.
Other: Oh yeah? There is no separation of church and state! It doesn't exist!
Me: Sure it does. It's interpreted from the Establishment Clause. It's a fact in our judicial system.
Other: But the words aren't in the Constitution!
Me: The Supreme Court's opinions set the interpretation of the Constitution. It's how our legal system has worked for over two centuries...
Other: But the Constitution doesn't give them that power!
Me: True. But again... that's how the legal system rolls. Interpreting constitutionality isn't give to any branch. And it wouldn't make much sense to have the courts rule and the president to just go "Nah, I don't agree" all the time. Besides, Congress can start the amendment process if something is truly a glaring error and has enough popular support; and the courts need to abide by the new amendment.
Other: But it's not in the Constitution! I declare this ruling unconstitutional!
Me: Sigh.

It is a fair point: judicial review (the power to decide the constitutionality of laws and invalidate them if deemed unconstitutional) is not ascribed to the judiciary. And a corollary is making our law system a common law system based on precedent rather than legislation... but that's a somewhat different topic. But since Marbury v Madison in 1803, the court has had this power and the other branches just kinda go "Yeah, why not?" The conversation above happens with all sorts of topics: explaining why the Bill of Rights applies to state law as well as federal (1890s), why there's a separation of church and state (1870s), why state-sponsored prayer isn't allowed in school (1960s), etc. It seems though, with the growing anger against "activist judges," more and more people seem to use the argument that judicial review shouldn't exist, and that someone else should decide if cases are constitutional or not. Who that "someone else" is usually becomes "what I want" but others bring up Congress or a vote to the people. To me, it's always made sense to have a semi-permanent high court of legal experts... although the system is not without its issues.

So, I'm curious what you all think. Does the current system of judicial review work best? Should it become codified in the form of an amendment... one that would likely not be passed in today's political climate? Or should constitutionality be left up to someone else... another branch, or a vote across the country?

What's you opinion on judicial review and the power of the SCotUS's opinions?
The current system works all right. Not perfect, but the best choice... and it's how our country's been run for over two centuries.:10 (33.3%)
It's true there's no Constitutional basis for judicial review or establishing constitutionality, but the current system works well. It could use a Constitutional Amendment to validate it though.:4 (13.3%)
Putting this much power in the hands of nine people who serve for life is dangerous and contrary to the idea of democracy. Someone else should have the power to decide what the Constitution means:1 (3.3%)
Locke makes lousy poll choices and I have my own opinion. Also, I think he's a witch and propose throwing him into water to see if he floats.:15 (50.0%)
Total:30
#2 Jan 19 2012 at 11:54 AM Rating: Excellent
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LockeColeMA wrote:
Or should constitutionality be left up to someone else... another branch, or a vote across the country?
Yeah, considering how big a thing American Idol is, and how few people really vote, I'm all for just leaving it out of the majority's hands.
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#3 Jan 19 2012 at 11:56 AM Rating: Excellent
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I was gonna go with the first one, but I think you sweetened the pot too much on the fourth to pick anything else.
#4 Jan 19 2012 at 12:13 PM Rating: Excellent
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I think your current system works fine, with the exception of the fact that appointment to SCotUS is a lifetime appointment, afaik.
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#5 Jan 19 2012 at 12:14 PM Rating: Excellent
I think the FL bill is okay as long as the student led prayer group does not have access to a microphone/PA system to broadcast said prayer so loudly every student has to hear it whether they want to or not.

Quiet prayer circle by the basketball team before they go on the court? Sure, why not. Invocation prayer by students prior to a mandatory school-wide assembly? Bzzzzttt! No!
#6 Jan 19 2012 at 12:53 PM Rating: Decent
I always thought that, so long as it was "student led," prayer in school was ok. That's pretty much how it always went at our school. Our Student Body President led prayer at graduation.

It's not going to hurt a non-religious student to hear others led in prayer. Just choose not to participate. At least, that's what I always did. It's easier to buck the norm when it's just the other students doing it. When it's the school administration, there's more of a "The principal is telling us to do this, we'd better do it or we'll be in trouble" feeling going on.
#7 Jan 19 2012 at 12:55 PM Rating: Excellent
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
#8 Jan 19 2012 at 12:59 PM Rating: Decent
catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho


If that's the only thing in high school that makes a person feel "really uncomfortable," then I think they're doing pretty well.
#9 Jan 19 2012 at 1:02 PM Rating: Excellent
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catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.
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#10 Jan 19 2012 at 1:05 PM Rating: Excellent
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Uglysasquatch wrote:
catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.

This. I'm not religious, but being in the south, it seems like I always end up somewhere where someone is leading a prayer. I just bow my head, stare at my lap or shoes until it's done, then go about my business. It doesn't hurt me or make me feel uncomfortable, just kills about 15-30 seconds.
#11 Jan 19 2012 at 1:14 PM Rating: Excellent
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During any prayer I end up imagining George Burns nearby, complaining about how "they just don't get it."
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#12 Jan 19 2012 at 1:20 PM Rating: Excellent
Nadenu wrote:
This. I'm not religious, but being in the south, it seems like I always end up somewhere where someone is leading a prayer. I just bow my head, stare at my lap or shoes until it's done, then go about my business. It doesn't hurt me or make me feel uncomfortable, just kills about 15-30 seconds.


I rarely even bowed my head, really, but I also made damn sure not to do anything to disrupt or be disrespectful during said prayers.
#13 Jan 19 2012 at 1:24 PM Rating: Excellent
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Nadenu wrote:
Uglysasquatch wrote:
catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.

This. I'm not religious, but being in the south, it seems like I always end up somewhere where someone is leading a prayer. I just bow my head, stare at my lap or shoes until it's done, then go about my business. It doesn't hurt me or make me feel uncomfortable, just kills about 15-30 seconds.


I feel pretty much the same way. However, I also can see where it seems... wrong... to sponsor only one type of prayer over others. Equal opportunity to present should be fine in my book, but I'm not a SCotUS judge.

... yet.
#14 Jan 19 2012 at 3:15 PM Rating: Excellent
If there's some sort of learning involved in it, I wouldn't mind. What about well researched prayers from around the world, different cultures, or some history to go with it? That's cool. That's education, in its own way.

But southern baptist style prayer usually involves one person mumbling for a minute or two, and offering little of value (to me, anyway. I'm jaded.)
#15 Jan 19 2012 at 3:41 PM Rating: Good
While the power to overturn acts of congress (and lesser government entities) may not be explicitly granted to the SC by the constitution, the implication of this power is made very clear.

Article 3, section1 wrote:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.


Article 3, section 2 wrote:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


The discussion of the judicial power granted by the Constitution, with specific regard to the idea of "judicial review" as it is defined today is largely academic, and there is evidence that the implication is more concrete elsewhere in the early U.S. articles of government. A classic example is this excerpt from the 1780 constitution of Massachusetts.

Quote:
It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.


Given that this document existed long before the U.S. Constitution was drafted, it's not unreasonable to argue that this "impartial interpretation of the laws and administration of justice" was the implicit power granted by the U.S. constitution, even if the wording doesn't expressly grant it.
#16 Jan 19 2012 at 4:09 PM Rating: Decent
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I think that the basic idea of judicial review is legitimate and necessary. At some point, you have to have a means to determine if an act within the US is in violation or keeping of the US constitution. The danger of somehow exempting some parts of the nation from this outweighs the problems with the judicial review process itself.

The problem, however, is that over time it's ceased to be as much about determining whether a given act or law is in violation of the constitution and more about supporting laws which align with a given political agenda and opposing those which don't and using the guise of "interpreting" the constitution to do it. We've seen blatant examples of this where the only logical explanation one can come to is that the judge(s) just figured that even though the constitution doesn't say something, they believe that it should, so they'll rule on that belief instead of the actual law itself. IMO, that's incredibly problematic. Once you start doing that, then everyone has to start doing it, and pretty soon rule of law gives way so political sides.
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#17 Jan 19 2012 at 4:55 PM Rating: Good
I think it's important to ask not only whether judicial review is proper, but also whether it achieves its aims.

Judicial review of administrative and executive discretion is useful to prevent every-day abuses of power. Take things further than that and its effectiveness is more questionable.
#18 Jan 19 2012 at 6:44 PM Rating: Good
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Eske Esquire wrote:
I was gonna go with the first one, but I think you sweetened the pot too much on the fourth to pick anything else.


Same... although I did have caveats to the first one. I think, generally speaking, judicial review is a positive thing, but it is too vulnerable to political whims (who gets to appoint the judges).

I worry about a reversal of progressive judicial review. So far I've been largely happy with Supreme Court rulings in Canada, for example, but John Ralston Saul made a compelling case in Voltaire's Bastards as to why we shouldn't depend on judicial review not going haywire.

I may look up the passage and post it here when I get home... depending on my laziness level.

Edited, Jan 19th 2012 4:44pm by Olorinus
#19 Jan 19 2012 at 6:53 PM Rating: Decent
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Belkira wrote:
I always thought that, so long as it was "student led," prayer in school was ok. That's pretty much how it always went at our school. Our Student Body President led prayer at graduation.

It's not going to hurt a non-religious student to hear others led in prayer. Just choose not to participate. At least, that's what I always did. It's easier to buck the norm when it's just the other students doing it. When it's the school administration, there's more of a "The principal is telling us to do this, we'd better do it or we'll be in trouble" feeling going on.


It isn't the non-religious I worry about - it is the people with different relgions and beliefs... also it is the implied social sanction of the beliefs being stated. If the school is doing prayers by a bunch of different people with different religions I would have less problem with it.

Also as someone who has been actively persecuted by certain sects of Christianity, I would understand some people feeling really uncomfortable with being in a situation where they are forced to listen to that stuff. Lots of prayer I've heard in my life is actually pretty hateful and controversial. As a ***** person, I guess I would just be a little worried as a if I had a child in the school to see the school offering a social sanction (direct or indirect) of a religion which preaches hateful things about my family.

I mean, really, I went to church last sunday - and prayer belongs there and has meaning there, (and the denomination is cool to ******) but I feel really uncomfortable with the idea of mixing prayer into public schools, especially considering most christian churches are of the hateful, not the accepting variety.



Edited, Jan 19th 2012 4:56pm by Olorinus
#20 Jan 19 2012 at 7:43 PM Rating: Excellent
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Nadenu wrote:
Uglysasquatch wrote:
catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.

This. I'm not religious, but being in the south, it seems like I always end up somewhere where someone is leading a prayer. I just bow my head, stare at my lap or shoes until it's done, then go about my business. It doesn't hurt me or make me feel uncomfortable, just kills about 15-30 seconds.



Really? Because I repeat every word they say, aloud, in Droopy's voice.

I'm a Droopyist. It's what we do.
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#21 Jan 19 2012 at 10:23 PM Rating: Decent
Olorinus wrote:
It isn't the non-religious I worry about - it is the people with different relgions and beliefs... also it is the implied social sanction of the beliefs being stated. If the school is doing prayers by a bunch of different people with different religions I would have less problem with it.


Yeah, that's sort of why I said it's ok if it's student-led, not if it's led by the school administration.

Olorinus wrote:
Also as someone who has been actively persecuted by certain sects of Christianity, I would understand some people feeling really uncomfortable with being in a situation where they are forced to listen to that stuff. Lots of prayer I've heard in my life is actually pretty hateful and controversial. As a ***** person, I guess I would just be a little worried as a if I had a child in the school to see the school offering a social sanction (direct or indirect) of a religion which preaches hateful things about my family.


Yeah... again. I don't see the students praying for the gay people to go to hell. It's not the school offering it. That's the whole point of the thread....

Olorinus wrote:
I mean, really, I went to church last sunday - and prayer belongs there and has meaning there, (and the denomination is cool to ******) but I feel really uncomfortable with the idea of mixing prayer into public schools, especially considering most christian churches are of the hateful, not the accepting variety.


Prayer belongs anywhere someone needs it. It has meaning everywhere. You're hung up on the idea that the school is sanctioning it, and we're not talking about that at all.
#22 Jan 19 2012 at 11:13 PM Rating: Good
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If students want to pray with each other in the lunch room or on the bleachers or in the schoolyard, there is no problem with it.

However, if the school makes everyone listen to it, whether it conflicts with their beliefs or is rooted in an institution which persecutes some students and their families - then yes the school is sanctioning it.

It doesn't matter whether it is coming from the principal for from the mouths of babes - the instant that other students are forced to uncritically participate in it (even if that is only listening to it) it becomes school sanctioned and is inappropriate.

Obviously we can use some common sense - there is a difference between say, a kid winning a school contest and getting to say a little something and saying "I'd like to thank Jesus" or some crap - who cares? But as soon as someone is standing in front of the class saying "now I will lead you in prayer" - it is inappropriate.

Why would it matter whether students are imposing upon other students versus it coming from the mouth of a teacher? Given that everything in schools is vetted, anything that is allowed to be presented is implicitly sanctioned by the institution.

Now if every kid is given a turn, and they are allowed to pray to Cthulu or play their favourite rap song on while everyone listens reverently and another kid is allowed to make everyone listen to excerpts of the communist manifesto, etc etc etc - ie. if the school is uncritical about what it allows to be presented and allows for the full diversity of views and experiences to be left on equal ground - then sure - whatever.

Until then, subjecting kids to prayer in school - regardless of who it comes from - is inappropriate

Edited, Jan 19th 2012 9:21pm by Olorinus

Edited, Jan 19th 2012 9:22pm by Olorinus
#23 Jan 20 2012 at 12:18 AM Rating: Good
Olorinus wrote:
If students want to pray with each other in the lunch room or on the bleachers or in the schoolyard, there is no problem with it.

However, if the school makes everyone listen to it, whether it conflicts with their beliefs or is rooted in an institution which persecutes some students and their families - then yes the school is sanctioning it.

It doesn't matter whether it is coming from the principal for from the mouths of babes - the instant that other students are forced to uncritically participate in it (even if that is only listening to it) it becomes school sanctioned and is inappropriate.

Obviously we can use some common sense - there is a difference between say, a kid winning a school contest and getting to say a little something and saying "I'd like to thank Jesus" or some crap - who cares? But as soon as someone is standing in front of the class saying "now I will lead you in prayer" - it is inappropriate.

Why would it matter whether students are imposing upon other students versus it coming from the mouth of a teacher? Given that everything in schools is vetted, anything that is allowed to be presented is implicitly sanctioned by the institution.

Now if every kid is given a turn, and they are allowed to pray to Cthulu or play their favourite rap song on while everyone listens reverently and another kid is allowed to make everyone listen to excerpts of the communist manifesto, etc etc etc - ie. if the school is uncritical about what it allows to be presented and allows for the full diversity of views and experiences to be left on equal ground - then sure - whatever.

Until then, subjecting kids to prayer in school - regardless of who it comes from - is inappropriate


That's a nice little rant, but I think you're letting your own prejudices get in the way. I agree that if some other student wishes to lead the students in a prayer from another religion, it should also be welcomed. And if it is not, then no one can lead a prayer. But I think you take it too far.
#24 Jan 20 2012 at 5:35 AM Rating: Excellent
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Samira wrote:
Nadenu wrote:
Uglysasquatch wrote:
catwho wrote:
It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho
Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.

This. I'm not religious, but being in the south, it seems like I always end up somewhere where someone is leading a prayer. I just bow my head, stare at my lap or shoes until it's done, then go about my business. It doesn't hurt me or make me feel uncomfortable, just kills about 15-30 seconds.



Really? Because I repeat every word they say, aloud, in Droopy's voice.

I'm a Droopyist. It's what we do.

Smiley: inlove
#25 Jan 20 2012 at 8:54 AM Rating: Excellent
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Olorinus wrote:
Also as someone who has been actively persecuted by certain sects of Christianity, I would understand some people feeling really uncomfortable with being in a situation where they are forced to listen to that stuff.
As someone who has been actively persecuted by the same certain sects of Christianity, and has been actively assaulted with small arms fire/rocket propelled grenades/improvised explosive devices, I don't understand how anyone can use the actions of a small subset of people to represent the larger whole. I don't see how "Our Father, who art in Heaven, we thank you for your blessings" or "Allah be with you" can make anyone uncomfortable.
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#26 Jan 20 2012 at 2:10 PM Rating: Decent
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If that is all it was, sure - but most prayers don't simply say that...

Also, by promoting an institution which is MOSTLY hateful - not a "small subset" - the "small subset" is accepting churches when it comes to christianity anyway - you are promoting a worldview which is discriminatory and exclusionary and giving those viewpoints legitimacy.

Sorry, it just doesn't belong in school. People are free to pray amongst themselves but forcing it on other people is wrong. If you want to go to a school with prayer - go to a private religious school.

I dunno, that's just considered basic here. I can't imagine anyone thinking they could try to sneak prayer in by using students as pawns here and get away with it. It wouldn't even be discussed as a serious option.



Edited, Jan 20th 2012 12:12pm by Olorinus
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