perfidy

I would like to point out that the Kelo ruling was the responsibility of the liberal wing of the court, not the Bush administration.

If you want to construct an argument that Bush is creating the first national police state and superfund site, you'll have to leave that bit out.

Police state? Whatever. You can't even expect the police to come to your aid when you get a g-d restraining order. Read this ruling:

http://www.cnn.com/2005/LAW/06/27/scotus.restraining.orders.ap/index.ht…

God forbid I encounter a wife beater as my next boyfriend. Or any possible psycho the three of us can name.

Well, Buckethead took the easy one, and it's no longer available for me to harp on, otherwise that would be where I'd have gone straight away.

Therefore, I'll take the second, and point out that, while I agree with your sentiment about the direction of certain civil liberties, it's not as though a functionary can simply make the claim that a citizen should be held, and then, without further judicial review, that person heads to the pokey. Just as is the case for search warrants and wiretaps, those inconveniences can't occur on a whim, free from a judge's involvement. Much like items of concern over the Patriot Act's supposed new powers, there's no feeling quite like sitting across the table from a US Attorney investigating someone else's affairs and finding him in possession of your (or in this case, my) bank records, without ever having heard a peep from anyone. And that was 10 years ago. So I'm admittedly a bit desensitized on the issue, but honestly, I do share your concern.

The CNN story Maps linked, is a tough one. Creating a right to sue when the police didn't do enough, with "enough" being strictly defined as successfully enforcing the restraining order, is a tall order. People screw up, and police officers are people too. Speaking of such screw-ups, I think I can add one to the list - see this story: Driver">http://www.chron.com/cs/CDA/ssistory.mpl/front/3239028]Driver being chased was told she had to stop car and call again. The dispatcher in question wasn't disciplined in any way, there was just "a policy change".

Buckethead did hit the easy one.

Ross - Are you saying we should all vote Democratic so there will be more freedom protecting judges like Ginsberg?

Right now only Rehnquist, Thomas, and Scalia seem to have the attention span and ready skills to grasp the Bill of Rights.

"Right now only Rehnquist, Thomas, and Scalia seem to have the attention span and ready skills to grasp the Bill of Rights."

Bram, you said a mouthful. I am a knee-jerk mild liberal, and my wife is much less mildly so. When the Kelo decision came down, her first comment was, "and that's the goddamn problem with liberals."

I never-- NEVER-- thought I would see the day where I felt Clarence Thomas was on my side of any multi-sided question.

This is off topic, but I think the problem with liberalism (and, increasingly, moral conservatism and Republicanism), is that they see this yoooooge government apparatus and, instead of thinking, "wow... let's use this yoooge thing to do some good in the world," they think, "wow... let's use this yooooge thing to do something."

I meant to write "reading skills" but let spell check change my mangled typing to "ready" by mistake.

I believe that most Americans, when they actually think about it, would agree that the Constitution should be interpreted fairly literally. It was, after all, written to protect us from oppressive government. Unfortunately the term "liberal" as it applies to judges has been twisted around so that it applies to the ones who would rather makes things up as they go than read the Constitution and the Laws they are supposed to be interpreting. Very dangerous.

People on the left usually support Justices who don't take the Constitution seriously because it is a document meant to limit government power. They especially don't like 2nd and tenth amendments. However, when we appoint Justices who ignore the Constitution and its Amendments, it turns out they start ignoring even the ones the Liberals like.

The fight over the next Supreme Court appointments will be very ugly. Unfortunately it will not focus on real judicial issues but on personal slanders and scare tactics by the Move On types.

Dude, do you even read what you write?

"Fairly literally"?

That's the entire argument over the judiciary in a nutshell. Take these basics, for a start:

1. Why does the Supreme Court split so much in its decisions? Because cases that arrive at the SC aren't straightforward; there are legitimate and compelling arguments on both sides of the issue. Lower courts take care of the obvious stuff. The SC is NOT a body that simply interprets the constitution literally. Just about every case before it falls into the cracks between law and the constitution. The SC is _inherently_ a subjective entity; strictly objective review is beneath it. The SC is also a _political_ entity.

2. As with just about everything else in a fairly grey world, you still have to make decisions. Someone has to win the case and someone has to lose. So how do you go about doing that? You hypothesize about where to draw the line, then create tests to screen and classify circumstances.

3. Almost every opinion by the SC results in one or more tests being created. The tests that the SC creates have enormous political consequences; hence its political nature.

4. See http://www.conlaw.org/prearg2.htm for an example of the convoluated analysis your "literal constitution" requires to be interpreted in the context of a modern issue.

5. It's the Right and the current administration that has vigorously fought for the power to imprison anyone, including American citizens, without charge, trial or jury, since 9/11. It's being played out through the courts, but there it is. You want to compare fully compensated loss of property to that? I'll take the loss of property any day.

Generalizing about these decisions is pretty foolish, in my opinion, although I've done it myself. The bottom line is that you or just about anybody provided with an SC opinion and dissent would read one, _completely_ agree with it, then read the other, and _completely_ agree with that. These people are smart and persuasive.

"Kel" is an interesting case. It did NOT take on the question of economic-interest-as-public-use; that question has about a hundred years of precendent that says it is public use, and therefore qualifies. This was really a case about where the line should be drawn, and whether the federal government had any business telling local governments where they should draw it.

The majority felt that in this particular case, public use was present. They moved the line somewhat, and there's a new test. There's plenty of language limiting the applicability, though -- this is by no means carte blanche for robbing you of your home.

Your notion of the constitution as a document that limits power is warm and fuzzy, and completely wrong. The constitution quite precisely defines where power resides, and how it may be applied. It is the _source_ of power; the legal authority from which all other legitimate power is derived.

Since you appear to be a member of the "judicial activism" crowd, I encourage you to point out at least one other case in which judges "rewrote the law", or whatever term you use for it. My experience is that it's judicial activism only when the beholder disagrees.

Ross, I'd call Brown v Board of Ed (Topeka) to be judicial activism. I think it was good medicine for this country to integrate.

Patton, I didn't fully read everything about SCOTUS this week because my job has been hell, but I mentioned the restraining order/suing police issue because it's a little frightening. If the cops aren't accountable for enforcing a restraining order, than what is the point of having them at all? What was the death of so many battered women and children for? Those restraining orders started getting enforced after battered women's shelters started pressuring law enforcement to do their job and ENFORCE those orders.

I mean, for a freakin' gun-control nut like myself, yesterday I briefly considered buying a gun to protect myself and home. If I can't rely on the mechanisms our society has in place to protect us, then where is the citizenry going to be safe?

From personal experience, the unwanted out-of-towner ex-boyfriend on the doorstep of my apartment has struck terror into me. Knowing that I have a crazy ex-boyfriend out there who owns a gun freaks me out a bit, and a few of the other ministers too. I haven't needed a restraining order, but holy crap! If I did, it sounds like neglience on the part of the police wouldn't be actionable.

Yeah I'm paranoid, but like Andy Grove says,"Only the Paranoid survive."

Just to be clear here: We're in full agreement on the crux of the matter. I think enforcing restraining orders should be at least equal in importance to a radio call for officer in trouble or a fire at a donut shop.

I just pointed out that the basis for the suit was the fact that they weren't successful in their enforcement, not that they avoided performing it.

Success can be sought, but it can't be dictated. Effort, on the other hand, can be dictated, and from the reading I got of the case, the officers tried and unfortunately failed to enforce the protective order.

Like the referenced Houston 911 dispatcher, they'd damned well do better in the future, because the recent past results don't inspire any awe, and if they're not here to protect us from one another, I fail to see why they're here at all.

P, thanks for pointing out the nuances. I don't have time for close reading. (Work suckage) I'm on the lateshift again which how I that I'm posting at all.

Ross,

I could do some research on Supreme Court cases but it's late and I would be cutting into my Call of Duty time.

So, how about Roe vs. Wade? The word "abortion" does not appear in the Constitution and the 10th reserves all other powers to the states... I know you could theoretically travel to a different state for an abortion so some would say that the Commerce Clause applies. That's ridiculous since it would apply to every other activity you can name.

If the courts had stayed out of it and let the state legislatures and their voters decide the issue, we probably would not be having these stupid fights over judges. I have even heard the argument that the political roles may have been reversed – Republican legislators in favor of allowing abortion and the Dems against – along the same basic lines as the death penalty issue.

Instead of staying out or just interpreting the Constitution, the Warren Court created a New Constitutional Right which had never existed before and has no legal basis. That is Judicial Activism.

I don't care for the whiny liberal argument that you cannot interpret the Constitution literally. It's an insult to anyone who can read. If it does become too awkward for the modern world, we have mechanisms to amend it. Interpreted literally, the Constitution lays out a very limited form of government. Ignored by Liberals / Progressives / Socialist whatever you call yourselves, it's just a worthless old piece of paper.

P.S.: I knew that “Fairly literally” is a shitty phrase. I was in a hurry and could not think of anything better. I don't think most Americans would take the 2nd Amendment so literally that a convicted felon could legally buy a machine gun. They would, however, agree that it gives a law abiding citizen the right to own firearms.

I also doubt most people would agree that it is okay for a state to to seize their property so a developer can build condos for rich folks – ignoring the 4th and 5th Amendments.

Mapgirl, not to beat a dead hobby horse, but I urge you (and every other responsible adult, whether or not I would agree with him/her politically) to do more than briefly consider purchasing a gun. The State is not responsible for your protection (there are other Court rulings than this back of that premise), so why does it really want you disarmed?

Bram and Ken,
When I was a teenager I wrote a fair amount of short stories, chronologies, and sketches of a second American Revolution and Civil War.

The source of the rift between the revolutionaries and the gubmint was how the Constitution is interpreted; the revolutionary "Constitutionalists" (derisively shortened to "Connies") advocated a closer-to-literal interpretation of the document. Based on other outside pressures, it was enough to form a sutainable guerilla force operating in fringe areas seeking secession.

If a 16 year old could have conceived of such a thing, and nearly 20 years ago to boot, I have to wonder what bona-fide militia types are preparing as I type.

I wonder, but I don't really want to know.

Also Ken,

Re: Mapgirl's right to self defense. I believe the 2nd Amendment has been suspended indefinitely in her fair city.

In DC, yes, but not in Northern Virginia.

GL- yah, I've moved out of Georgetown to what is undeniably Dixieland. *shudder*

I can tote a gun and smoke all I want here in VA.

Maps, you should take advantage of the freedoms you still possess in the great state of Virginia.

Of course, Northern Virginia is in no way part of "the South." It's more like Ohio than Georgia. Now, drive an hour south, and you will actually be in dixieland.

B,
Judging by recent press, I was under the impression that northern VA had more in common culturally with Central America than with Ohio.

Maps,
I guess I'm not reading your journal as often as I ought, as I didn't know you moved. Sorry. I'm happy to share an opinion on your personal defense needs. I'm sure B and Ken would readily weigh in as well.

Do you have a zombie defense plan...?

GL, okay more in common with Ohio and Central America than Georgia. The Ohio part and the Central America part don't really interact that much.

Everyone needs a zombie defense plan. And a meteor strike plan, and an alien invasion plan. An ounce of prevention is worth at least a couple ounces of cure.

GL-

Most of my blog is on lockdown on just downright frivolous. You're only a year behind the times. I'm sure you've heard that before though. ;-)

As for my zombie defense plan, I plan to use my tent stakes to drive through their hearts, and I've watched 'Shaun of the Dead' for training and guidance.

In reality, I live close enough to the world's largest office building to hear the flash bombs they use during emergency training exercises. So indeed, I generally keep around enough water and provisions, including pepper spray (new as of 2 weeks ago!), TP and fresh batteries. If I've learned anything from Burning Man, it's to be prepared for anything. Most of my BM friends in NYC were handing out glowsticks and lights when the power went out for days in NYC. Go figure. Nothing like a serious power outage to bring out the raver in everyone....