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Military ban on gay service declared unconstitutional

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The Parkus Empire
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Ex-Nation

Postby The Parkus Empire » Thu Sep 09, 2010 9:06 pm

Nightkill the Emperor wrote:Finally.


Please keep both hands on the keyboard.
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Nightkill the Emperor
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Ex-Nation

Postby Nightkill the Emperor » Thu Sep 09, 2010 9:06 pm

The Parkus Empire wrote:
Nightkill the Emperor wrote:Finally.


Please keep both hands on the keyboard.

That's pretty much all I had to say.
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The Parkus Empire
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Ex-Nation

Postby The Parkus Empire » Thu Sep 09, 2010 9:07 pm

Nightkill the Emperor wrote:
The Parkus Empire wrote:
Nightkill the Emperor wrote:Finally.


Please keep both hands on the keyboard.

That's pretty much all I had to say.

Not much else to say if you're flyin' solo.
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Panzerjaeger
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Postby Panzerjaeger » Thu Sep 09, 2010 9:07 pm

Meh the military was more interesting with its latent homoeroticism it won't be nearly as interesting when it is in your face.
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Bydlostan (Ancient)
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Postby Bydlostan (Ancient) » Thu Sep 09, 2010 9:08 pm

The Parkus Empire wrote:


Even if happened it would just another one of a million regulations that are regularly ignored in the military.


Or another one that is arbitrarily enforced by asshole NCOs. Still, I can't imagine the shitstorm if they did, considering something like 2/3rds of lower enlisted smoke.

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Grave_n_idle
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Postby Grave_n_idle » Thu Sep 09, 2010 9:08 pm

Altamirus wrote:
Grave_n_idle wrote:
Altamirus wrote:
The Parkus Empire wrote:
Bydlostan wrote:How many soldiers sleep on OP or guard duty? Just because they do, doesn't mean they should.


Yeah, I really don't see what's so bad about a blow-job, nor do I think the military should discharge that large of a chunk or its personnel. That's how we roll.

Risk of STD transfer.


I've heard a rumour that it's quite dangerous to get shot at, too.

Hey but you sigh up knowing that. That's implied in the job that you could get shot at.


And that matters?

We're seriously going to ban a few certain behaviours due to 'risks'... for people who risk death as their job?
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Grave_n_idle
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Postby Grave_n_idle » Thu Sep 09, 2010 9:08 pm

Panzerjaeger wrote:Meh the military was more interesting with its latent homoeroticism it won't be nearly as interesting when it is in your face.


So to speak.
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Greed and Death
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Compulsory Consumerist State

Postby Greed and Death » Thu Sep 09, 2010 9:10 pm

The Parkus Empire wrote:
greed and death wrote:*raises hand*

Though i do know a solider who got 2 years for receiving a BJ.


Yet if I recall correctly, that was merely used as a pretense to prosecute him for something he couldn't otherwise have be prosecuted for, namely the complaint of a mother.

The girl was 16 but age of consent was 16 under ucmj and the state.
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The Parkus Empire
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Postby The Parkus Empire » Thu Sep 09, 2010 9:10 pm

Altamirus wrote:I thought that fell under the fraternization policy of UCMJ. But I'm probably wrong.


You are.
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The Parkus Empire
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Postby The Parkus Empire » Thu Sep 09, 2010 9:11 pm

Bydlostan wrote:Or another one that is arbitrarily enforced by asshole NCOs. Still, I can't imagine the shitstorm if they did, considering something like 2/3rds of lower enlisted smoke.


Such NCO's would have the fuck beaten out of them by troops in the field. Chickenshit does not fly there.
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Preussen-Sachsen
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Postby Preussen-Sachsen » Thu Sep 09, 2010 9:27 pm

He, funny.

In Germany, gays can serve in the army, but the instructors tell´em before, that they gonna be harassed by the whole platoon. Similarly to guys with long hairs. They´re allowed, but you gonna be the biggest fool of the barracks and predestinated for all kind of pranks.
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The Cat-Tribe
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Why do some people hate liberty & it's protector?

Postby The Cat-Tribe » Thu Sep 09, 2010 9:37 pm

Notes: 1. I have not yet read the decision or the entirety of this thread. I am simply replying to the point raised by the posts below because they are commonly raised on NSG & they piss me off.

2. I apologize for the length of this post, but, as I said, this pushes my buttons.


Greater Americania wrote:
Geniasis wrote:
Greater Americania wrote:I'm getting damn tired of these overactive courts using far more authority than they should have acquired. The very concept of judicial review should be reevaluated Constitutionally and edited so that Courts will not have the authority to make decisions like this. The Courts are becoming as though a legislature of their own. All they have to do is scream "unconstitutional" and they can enforce whatever they please.

I don't see what the problem is. This decision is both a victory of idealism and pragmatism.

I firmly disagree. Anyways, this sort of decision should never pass through the judicial branch. The role of the Courts should be less involved in politics. It's getting to the point where you liberals are abusing the system by simply avoiding the legislature, where you'ld never be able to pass your legislation, and simply heading the Courts where you can forge some sort or arbitrary declaration of unconstitutionality for whatever policy you're opposing. This needs to be put to a stop.

Cobhanglica wrote:More autocratic government by the courts under the premise of "constitutionality"; despite the fact that such decisions basically amount to the Court rewriting the Constitution to suit its views. There is absolutely nothing in the Constitution that could possibly be construed as giving gays an unalienable right to serve openly in the military.

1. Why do you hate freedom? Why do you hate liberty and equal protection under the law? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. Contrary to your whining about judicial tyranny or the importance of the legislature, fundamental rights and equal protection of the law do not depend on the whim of majority opinion or the outcome of elections:
The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:
The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also: Declaration of Independence (emphasis added):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51 (emphasis added):
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

2. It was U.S. District Judge Virginia Phillips's sworn duty under the Constitution to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

3. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:
A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "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. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):
The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):
[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

4. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.
Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

IN SUM, quit whining about judicial tyranny simply because a court rules a way you wish it hadn't. It is utterly infantile nonsense.
Last edited by The Cat-Tribe on Thu Sep 09, 2010 9:38 pm, edited 1 time in total.
I quit (again).
The Altani Confederacy wrote:
The Cat-Tribe wrote:With that, I am done with these shenanigans. Do as thou wilt.

Can't miss you until you're gone, Ambassador. Seriously, your delegation is like one of those stores that has a "Going Out Of Business" sale for twenty years. Stay or go, already.*snip*
"Don't give me no shit because . . . I've been Tired . . ." ~ Pixies
With that, "he put his boots on, he took a face from the Ancient Gallery, and he walked on down the Hall . . ."

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The Cat-Tribe
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Founded: Jan 18, 2005
Ex-Nation

Just in case, here is a copy of the court's decision

Postby The Cat-Tribe » Thu Sep 09, 2010 9:43 pm

RL calls me away, so I will read the thread and comment tomorrow. I am sure this is duplicative, but just in case: here is the U.S. District Court for the District of California's Memorandum Opinion in Log Cabin Republicans, a non-profit Corporation v. United States of America and Robert M. Gates,Secretary of Defense, et al (86p pdf).
I quit (again).
The Altani Confederacy wrote:
The Cat-Tribe wrote:With that, I am done with these shenanigans. Do as thou wilt.

Can't miss you until you're gone, Ambassador. Seriously, your delegation is like one of those stores that has a "Going Out Of Business" sale for twenty years. Stay or go, already.*snip*
"Don't give me no shit because . . . I've been Tired . . ." ~ Pixies
With that, "he put his boots on, he took a face from the Ancient Gallery, and he walked on down the Hall . . ."

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SaintB
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Postby SaintB » Thu Sep 09, 2010 9:43 pm

The Cat-Tribe wrote:
Notes: 1. I have not yet read the decision or the entirety of this thread. I am simply replying to the point raised by the posts below because they are commonly raised on NSG & they piss me off.

2. I apologize for the length of this post, but, as I said, this pushes my buttons.


Greater Americania wrote:
Geniasis wrote:
Greater Americania wrote:I'm getting damn tired of these overactive courts using far more authority than they should have acquired. The very concept of judicial review should be reevaluated Constitutionally and edited so that Courts will not have the authority to make decisions like this. The Courts are becoming as though a legislature of their own. All they have to do is scream "unconstitutional" and they can enforce whatever they please.

I don't see what the problem is. This decision is both a victory of idealism and pragmatism.

I firmly disagree. Anyways, this sort of decision should never pass through the judicial branch. The role of the Courts should be less involved in politics. It's getting to the point where you liberals are abusing the system by simply avoiding the legislature, where you'ld never be able to pass your legislation, and simply heading the Courts where you can forge some sort or arbitrary declaration of unconstitutionality for whatever policy you're opposing. This needs to be put to a stop.

Cobhanglica wrote:More autocratic government by the courts under the premise of "constitutionality"; despite the fact that such decisions basically amount to the Court rewriting the Constitution to suit its views. There is absolutely nothing in the Constitution that could possibly be construed as giving gays an unalienable right to serve openly in the military.

1. Why do you hate freedom? Why do you hate liberty and equal protection under the law? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. Contrary to your whining about judicial tyranny or the importance of the legislature, fundamental rights and equal protection of the law do not depend on the whim of majority opinion or the outcome of elections:
[spoiler]The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:
The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also: Declaration of Independence (emphasis added):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51 (emphasis added):
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

2. It was U.S. District Judge Virginia Phillips's sworn duty under the Constitution to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

3. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:
A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "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. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):
The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):
[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

4. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.
Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

IN SUM, quit whining about judicial tyranny simply because a court rules a way you wish it hadn't. It is utterly infantile nonsense.[/spoiler]

But Cat Tribes! Gays aren't people!
Hi my name is SaintB and I am prone to sarcasm and hyperbole. Because of this I make no warranties, express or implied, concerning the accuracy, completeness, reliability or suitability of the above statement, of its constituent parts, or of any supporting data. These terms are subject to change without notice from myself.

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Lelvona
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Democratic Socialists

Postby Lelvona » Thu Sep 09, 2010 9:48 pm

SaintB wrote:But Cat Tribes! Gays aren't people!



LIE!!!
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The Parkus Empire
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Ex-Nation

Postby The Parkus Empire » Thu Sep 09, 2010 9:52 pm

Preussen-Sachsen wrote:He, funny.

In Germany, gays can serve in the army, but the instructors tell´em before, that they gonna be harassed by the whole platoon. Similarly to guys with long hairs. They´re allowed, but you gonna be the biggest fool of the barracks and predestinated for all kind of pranks.


You can have long hair in the German military? Damn.
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SaintB
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Postby SaintB » Thu Sep 09, 2010 9:53 pm

Lelvona wrote:
SaintB wrote:But Cat Tribes! Gays aren't people!



LIE!!!

Not according to a lot of DADT proponents. They claim they aren't allowed the same rights and thus are somehow less than human.
Hi my name is SaintB and I am prone to sarcasm and hyperbole. Because of this I make no warranties, express or implied, concerning the accuracy, completeness, reliability or suitability of the above statement, of its constituent parts, or of any supporting data. These terms are subject to change without notice from myself.

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Otagia
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Postby Otagia » Thu Sep 09, 2010 9:56 pm

Lelvona wrote:
SaintB wrote:But Cat Tribes! Gays aren't people!



LIE!!!

Nah, it's true. My cousin Cletus saw one o' dem gays layin' eggs down by the river. Had scales and everything.

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Geniasis
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Ex-Nation

Postby Geniasis » Thu Sep 09, 2010 9:59 pm

Otagia wrote:
Lelvona wrote:
SaintB wrote:But Cat Tribes! Gays aren't people!



LIE!!!

Nah, it's true. My cousin Cletus saw one o' dem gays layin' eggs down by the river. Had scales and everything.


I saw 'em et 'ix live littluns. Jus' wriggled 'em down.
Supporter of making [citation needed] the official NSG way to say "source?"

Myrensis wrote:I say turn it into a brothel, that way Muslims and Christians can be offended together.


DaWoad wrote:nah, she only fought because, as everyone knows, the brits can't make a decent purse to save their lives and she had a VERY important shopping trip coming up!


Reichskommissariat ost wrote:Women are as good as men , I dont know why they constantly whine about things.


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Postby Unibot » Thu Sep 09, 2010 10:13 pm

Geniasis wrote:
Cobhanglica wrote:Point to me where in the Constitution that it says that gays are entitled to military service.


Where does it say that black people are entitled to military service?


It seems this would have been considered by the founding fathers when writing the constitution, as George Washington pleaded Congress to allow freed black slaves to partake in their armed forces in 1776 (after previously barring them to appease the concerned slave owners) .

[/Limited Canadian Knowledge on America's History]
Last edited by Unibot on Thu Sep 09, 2010 10:14 pm, edited 3 times in total.

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Greed and Death
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Compulsory Consumerist State

Postby Greed and Death » Thu Sep 09, 2010 11:17 pm

The Cat-Tribe wrote:
Notes: 1. I have not yet read the decision or the entirety of this thread. I am simply replying to the point raised by the posts below because they are commonly raised on NSG & they piss me off.

2. I apologize for the length of this post, but, as I said, this pushes my buttons.


Greater Americania wrote:
Geniasis wrote:
Greater Americania wrote:I'm getting damn tired of these overactive courts using far more authority than they should have acquired. The very concept of judicial review should be reevaluated Constitutionally and edited so that Courts will not have the authority to make decisions like this. The Courts are becoming as though a legislature of their own. All they have to do is scream "unconstitutional" and they can enforce whatever they please.

I don't see what the problem is. This decision is both a victory of idealism and pragmatism.

I firmly disagree. Anyways, this sort of decision should never pass through the judicial branch. The role of the Courts should be less involved in politics. It's getting to the point where you liberals are abusing the system by simply avoiding the legislature, where you'ld never be able to pass your legislation, and simply heading the Courts where you can forge some sort or arbitrary declaration of unconstitutionality for whatever policy you're opposing. This needs to be put to a stop.

Cobhanglica wrote:More autocratic government by the courts under the premise of "constitutionality"; despite the fact that such decisions basically amount to the Court rewriting the Constitution to suit its views. There is absolutely nothing in the Constitution that could possibly be construed as giving gays an unalienable right to serve openly in the military.

1. Why do you hate freedom? Why do you hate liberty and equal protection under the law? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. Contrary to your whining about judicial tyranny or the importance of the legislature, fundamental rights and equal protection of the law do not depend on the whim of majority opinion or the outcome of elections:
[spoiler]The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:
The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also: Declaration of Independence (emphasis added):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51 (emphasis added):
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

2. It was U.S. District Judge Virginia Phillips's sworn duty under the Constitution to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

3. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:
A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "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. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):
The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):
[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

4. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.
Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

IN SUM, quit whining about judicial tyranny simply because a court rules a way you wish it hadn't. It is utterly infantile nonsense.[/spoiler]


Ok, one question. This was a district court, so is there a limitation on the reach of this ruling ?
If the ruling is only in effect in this district, it seems at most to prevent discharge from one military base.

Edit.
Okay i am either too drunk to figure out how to spoiler, or your complicated matter of writing things makes it impossible.
Last edited by Greed and Death on Thu Sep 09, 2010 11:22 pm, edited 4 times in total.
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EvilDarkMagicians
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Founded: Jul 05, 2009
Ex-Nation

Postby EvilDarkMagicians » Thu Sep 09, 2010 11:20 pm

Took you long enough.

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SaintB
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Posts: 21714
Founded: Apr 18, 2007
Ex-Nation

Postby SaintB » Thu Sep 09, 2010 11:38 pm

greed and death wrote:
The Cat-Tribe wrote:
Notes: 1. I have not yet read the decision or the entirety of this thread. I am simply replying to the point raised by the posts below because they are commonly raised on NSG & they piss me off.

2. I apologize for the length of this post, but, as I said, this pushes my buttons.


Greater Americania wrote:
Geniasis wrote:
Greater Americania wrote:I'm getting damn tired of these overactive courts using far more authority than they should have acquired. The very concept of judicial review should be reevaluated Constitutionally and edited so that Courts will not have the authority to make decisions like this. The Courts are becoming as though a legislature of their own. All they have to do is scream "unconstitutional" and they can enforce whatever they please.

I don't see what the problem is. This decision is both a victory of idealism and pragmatism.

I firmly disagree. Anyways, this sort of decision should never pass through the judicial branch. The role of the Courts should be less involved in politics. It's getting to the point where you liberals are abusing the system by simply avoiding the legislature, where you'ld never be able to pass your legislation, and simply heading the Courts where you can forge some sort or arbitrary declaration of unconstitutionality for whatever policy you're opposing. This needs to be put to a stop.

Cobhanglica wrote:More autocratic government by the courts under the premise of "constitutionality"; despite the fact that such decisions basically amount to the Court rewriting the Constitution to suit its views. There is absolutely nothing in the Constitution that could possibly be construed as giving gays an unalienable right to serve openly in the military.

1. Why do you hate freedom? Why do you hate liberty and equal protection under the law? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. Contrary to your whining about judicial tyranny or the importance of the legislature, fundamental rights and equal protection of the law do not depend on the whim of majority opinion or the outcome of elections:
[spoiler]The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:
The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also: Declaration of Independence (emphasis added):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51 (emphasis added):
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

2. It was U.S. District Judge Virginia Phillips's sworn duty under the Constitution to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

3. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:
A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "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. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):
The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):
[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

4. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.
Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

IN SUM, quit whining about judicial tyranny simply because a court rules a way you wish it hadn't. It is utterly infantile nonsense.[/spoiler]


Ok, one question. This was a district court, so is there a limitation on the reach of this ruling ?
If the ruling is only in effect in this district, it seems at most to prevent discharge from one military base.

Edit.
Okay i am either too drunk to figure out how to spoiler, or your complicated matter of writing things makes it impossible.

its how he wrote it, I tried it three ways and got the same result.
Hi my name is SaintB and I am prone to sarcasm and hyperbole. Because of this I make no warranties, express or implied, concerning the accuracy, completeness, reliability or suitability of the above statement, of its constituent parts, or of any supporting data. These terms are subject to change without notice from myself.

Every day NationStates tells me I have one issue. I am pretty sure I've got more than that.

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Dyakovo
Post Kaiser
 
Posts: 83162
Founded: Nov 13, 2007
Ex-Nation

Postby Dyakovo » Thu Sep 09, 2010 11:44 pm

Geniasis wrote:
Exilia and Colonies wrote:DADT does not apply to the enemy. Nice try.


Of course not, but if the guy next to me is getting me aroused, how am I supposed to aim?

Ask him to pull out?
Don't take life so serious... It isn't permanent...
Freedom from religion is an integral part of Freedom of religion
Married to Koshka
USMC veteran MOS 0331/8152
Grave_n_Idle: Maybe that's why the bible is so anti-other-gods, the other gods do exist, but they diss on Jehovah all the time for his shitty work.
Ifreann: Odds are you're secretly a zebra with a very special keyboard.
Ostro: I think women need to be trained
Margno, Llamalandia, Tarsonis Survivors, Bachmann's America, Internationalist Bastard B'awwwww! You're mean!

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Dyakovo
Post Kaiser
 
Posts: 83162
Founded: Nov 13, 2007
Ex-Nation

Postby Dyakovo » Thu Sep 09, 2010 11:51 pm

Cobhanglica wrote:
Liuzzo wrote:The USSC is not part of the federal government? Thanks for the lesson.


It's not the part that gets to control the military. Congress passes the laws to fund and create the armies and the President commands them. SCOTUS has no powers relating to the military.

It is, however, the part that rules on the constitutionality of laws and *GASP* DADT is a law.
Don't take life so serious... It isn't permanent...
Freedom from religion is an integral part of Freedom of religion
Married to Koshka
USMC veteran MOS 0331/8152
Grave_n_Idle: Maybe that's why the bible is so anti-other-gods, the other gods do exist, but they diss on Jehovah all the time for his shitty work.
Ifreann: Odds are you're secretly a zebra with a very special keyboard.
Ostro: I think women need to be trained
Margno, Llamalandia, Tarsonis Survivors, Bachmann's America, Internationalist Bastard B'awwwww! You're mean!

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