Friday, August 13, 2010
Activist Justices
The so-called activist justices, Judges Walker and Bolton, are just doing their jobs: upholding the constitution. In both of the cases in front of the judges--same sex marriage in California and immigration in Arizona the critical constitutional amendment was the 14th.
Judge Walker's decision declared California's Prop 8 unconstitutional because it denied equal protection and due process to lesbians and gay men who were seeking to marry. His decision also stated that making laws based on disgust/morality have little standing. But that's another post.
Judge Bolton temporarily struck down Arizona's immigration law, because States do not "do" immigration, immigration is the purview of the Federal government (Federalism 101) and it is the federal government that declares who are citizens--again the 14th amendment.
The 14th Amendment in its entirety follows,but the crucual section for both laws that were struck down is Section 1.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Here is another article on activist justices: http://www.slate.com/id/2263347/
Judge Walker's decision declared California's Prop 8 unconstitutional because it denied equal protection and due process to lesbians and gay men who were seeking to marry. His decision also stated that making laws based on disgust/morality have little standing. But that's another post.
Judge Bolton temporarily struck down Arizona's immigration law, because States do not "do" immigration, immigration is the purview of the Federal government (Federalism 101) and it is the federal government that declares who are citizens--again the 14th amendment.
The 14th Amendment in its entirety follows,but the crucual section for both laws that were struck down is Section 1.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Here is another article on activist justices: http://www.slate.com/id/2263347/
Labels: 14th amendment, activist judges, Arizona's Immigration law, prop 8
Tuesday, July 07, 2009
Five Men in Robes
Five men in robes are actively interpreting law and some would say: misinterpreting laws that go
against the American values of equality and justice. These three cases all have in common that these men in robes disregarded legal precedent, and the plain reading of the statutory language.
For many, these cases only affect a few, who are really the majority: women, people of color and with the last decision, older workers.
In Castle Rock V Gonzales* which in 2005 said that the police do not have to respond to every violation of an order of protection--this case was tragic: 3 young girls died because the police did not respond to their mother's 6 (!) calls over the course of an evening that her ex-husband had violated the order and had taken the girls. In this case, the justices found that police enforcement of even mandatory arrest statutes when there is a violation of a protective order is not a constitutionally protected property interest. Protective Orders according to the Court are “benefits” that are not constitutionally protected entitlement property interests. And, though the Colorado law had stated if there was a violation the police shall arrest the violator, reinterpreted the word shall to mean may--as in may or may not. Congress did add a section to the Violence Against Women Act authorization in 2005 which set up Jessica Gonzales Victim Assistants to serve as liaisons between DV victims and law enforcement agencies in order to effectively enforce protection orders.
In 2007, in Ledbetter V Good Year Tire Co. the Justices decided that suits based on Title VII of the Civil Rights Act over race or gender pay discrimination have no standing if the claims are based on decisions made by the employer 180 days ago or more--even if the employee had no knowledge of the original pay discrimination (and many do not, since it is considered gauche to talk about one's pay and in some companies grounds for punitive action). It has taken an act of Congress to re-state the original intent of Title VII (Lilly Ledbetter Fair Pay Act of 2009).
And, in this session which just ended the 5-4 decision in an AGE discrimination case***, re-directs the burden of proof to rest solely with the worker who now must prove that age was a deciding factor previously, age only had to be one of the factors in a demotion or layoff. Congress needs to take corrective action.
So much for these justices and their ideological base who claim not to be activist judges
*Castle Rock v. Gonzales, 545 U.S. 748 (2005).
**Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)
***Gross v. FBL Financial Services Inc. (No. 08-441) 526 F. 3d 356, vacated and remanded.
against the American values of equality and justice. These three cases all have in common that these men in robes disregarded legal precedent, and the plain reading of the statutory language.
For many, these cases only affect a few, who are really the majority: women, people of color and with the last decision, older workers.
In Castle Rock V Gonzales* which in 2005 said that the police do not have to respond to every violation of an order of protection--this case was tragic: 3 young girls died because the police did not respond to their mother's 6 (!) calls over the course of an evening that her ex-husband had violated the order and had taken the girls. In this case, the justices found that police enforcement of even mandatory arrest statutes when there is a violation of a protective order is not a constitutionally protected property interest. Protective Orders according to the Court are “benefits” that are not constitutionally protected entitlement property interests. And, though the Colorado law had stated if there was a violation the police shall arrest the violator, reinterpreted the word shall to mean may--as in may or may not. Congress did add a section to the Violence Against Women Act authorization in 2005 which set up Jessica Gonzales Victim Assistants to serve as liaisons between DV victims and law enforcement agencies in order to effectively enforce protection orders.
In 2007, in Ledbetter V Good Year Tire Co. the Justices decided that suits based on Title VII of the Civil Rights Act over race or gender pay discrimination have no standing if the claims are based on decisions made by the employer 180 days ago or more--even if the employee had no knowledge of the original pay discrimination (and many do not, since it is considered gauche to talk about one's pay and in some companies grounds for punitive action). It has taken an act of Congress to re-state the original intent of Title VII (Lilly Ledbetter Fair Pay Act of 2009).
And, in this session which just ended the 5-4 decision in an AGE discrimination case***, re-directs the burden of proof to rest solely with the worker who now must prove that age was a deciding factor previously, age only had to be one of the factors in a demotion or layoff. Congress needs to take corrective action.
So much for these justices and their ideological base who claim not to be activist judges
*Castle Rock v. Gonzales, 545 U.S. 748 (2005).
**Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)
***Gross v. FBL Financial Services Inc. (No. 08-441) 526 F. 3d 356, vacated and remanded.
Labels: activist judges, CastleRock, discrimination, Gross v FBL, Ledbetter
