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In Reply to: So you won't answer the question? posted by Bruce from DC on April 28, 2000 at 17:44:03:
***I don't care about the bitter politics among the Miami Cubans, anglos and blacks. And I certainly don't care about Fidel Castro who is a relic. But I do care about the law, which is supposed to be a set of neutral principles, uniformly applied. It is not supposed to be something that we, the government or anyone else makes up as it goes along.
***It is undisputed that Elian Gonzalez's mother brought him to the United States voluntarily. Unfortunately, she died before she reached US soil and could seek asylum (an act, by the way, that is unnecessary for Cubans to remain in the US for up to a year).Yes, as far as I know, one can ask right away. Also, the INS rule apparently says "anybody", regardless of their age, in particular.
***I don't think many people, including the US Department of Justice believe that Juan Miguel, who is divorced from Elian's mother and was not the custodial parent, could show up in the United States and preremptorily obtain the repatriation of his son to Cuba if his ex-wife were still alive. In fact, I'm not sure how many people believe that, under those circumstances, he should even be permitted to show up and argue for return of the boy.
He didn't "show up", he war rounded up, his parents put under house arrest, and he was sent on an assignment.
***But, since the mother is dead, the Justice Department apparently believes that this father should have the boy back for the asking, without even an inquiry into the nature of his relationship with the child in Cuba and, into, for example, whether he consented to the boy's departure from Cuba before it became a public issue. I'm not saying that he shouldn't have the boy back under any circumstances; but I think, as the Attorney General originally thought, that this a a guardianship issue for the domestic relations courts, not for the INS to determine on its own in a summary fashion.
That is true, as stated in the INS letter from Dec 1 1999. However, as we all know, at that point Castro apparently had expressed his displeasure and the Clinton team changed the course.
***And if you feel philosophically comfortable with those in office, then how would would feel about all this if Jerry Falwell, Pat Robertson and Pat Buchanan were running the government?
I am usually against such general statements. It is common, unfortunately, today to demonize the religious leaders that are aligned with the Republican party. At the same time no one is screaming about the "far left" religious leaders, of which there are many. Many of them advocate hatred and sugar-coated violence, but that goes without much comments in the mainstream media, of course. I am not even going to bother mentioning those, but the bottom line is that I find the overconcentration on religious leaders vicious and unjustified. I am not a religious person myself.
Your question reflects an unfortunate fact that in most people's minds it is enough to mentione those "evil" names and the "natural" reaction follows. All three of those idividuals have been tarred enough by know. We should, however, look deeper and really understand what each one of them would do if in office. Taken from that perspective I don't think any of them would be more dangerous to us that many, many from the left.
My point being, that if anytime you want to present an exagerated case of a potential evil you reach for the name from the so-called far right, then after a short time that becomes a norm. There are plenty of dangerous extremists on the left to chose from.
I see no reason, for example, to believe that Maxine Waters in the top office would do this coutry more good that either of the Pats. But I think we better avoid using particular names just to be fair.
To clarify my position - I would like to see the boy stay here. I would, however, respect the court decision in this matter.
I resent greatly allowing foreign known scumbags to affect our actions - these should be done only as our interpretation of OUR law.
BTW, our government's fear of making bad people angry led directly to another disaster: this one in Russia, where all our billions ended up in the hands of bandits and Party/KGB crooks. All because the Gore/Clinton bunch was afraid to demand simple accountability.
I wasn't intending to demonize Falwell, Robertson, et al. I selected them for my question because I assumed, given "late's" views expressed on other subjects, that he would find them -- pardon the expression -- 180 degrees out of phase with his own philosophical views. The point that I was trying to make, apparently unsuccessfully, is that people who "agree" with a particular governmental action only because it is consistent with their philosophy and without regard to neutral principles, e.g. "the armed raid to "rescue" Elian was ok because the INS had ordered the Miami Cubans to surrender him and they had refused", should contemplate the consequences of their approval if people with whom they disagreed were in power.The idea that law is a set of neutral principles applied uniformly is one of our greatest bulwarks against tyranny. If "justice" is available only for the politically favored, then the politically unfavored will not support it. When and if they come to power, their first efforts will be to take revenge on those whom they have ousted. I believe that one of the factors that perpetuates tyranny in countries with no strong legal principles is the fear of counter-revolution. Those in power know that if they lose power, not only are their "perks" but their lives and their families lives. That's why I thought it was a tremendous positive step in the Soviet Union when Nikita Kruschev became the first former leader who did not die in office -- of natural or un-natural causes.
It is a point that most folks do not seem to grasp.
The boy is a foreign national. One of those neutral principles that is being missed is that we are obligated on numerous levels because of it.
As i said, it is in the hands of the Court. Let them parse out where
duty, honor, and obligation compell us.
...but unfortunately we see constant attemps at rewriting the laws to fit this and that group. It is usually refered to as judicial activism, and any opponent of this frivolous excercise is immediately thrown out - do I hear judge Bork?We had large number of "activist" judges appointed lately.
hi Victor,
conservatives have a long history of judicial activism in this country. Even conservative legal scholars describe the 1930's as an "embarassment". Being a judge is an exceptionally difficult job, and every judge occasionally makes a mistake. I have seen quite a few comments about the 'judicial activism' of the judges Reagan appointed.
The phrase Judicial Activism implies that the judge has exceeded his authority. But...that is actually an exceptionally difficult judgemnt to make. The Supreme Court lagely defined itself with *blatant* acts of "Judicial Activism" starting with a VERY clever decision by Marshall when
George Washington was president.
So... what does that phrase really mean? Not much. The early history of the Supreme Court reads like an intellectual thriller (by the standards of most history) with fiendish cleverness and some bizarre skullduggery.
Enjoy! (i willl give you a hint, what were justices doing near the Missippi River?)
have you got cojones!Ever since they had their own Court house, the Supreme Court has started making legislation. {For example, there's NO separation of church & state in our constitution which was used to stifle religion. What Is written is that there shall be NO law acknowledging a state sanctioned religion nor any law that shall they hinder it's practice.} Now the court decides what this law & that law "should" read, not applying the actual laws but interprting them to mean just about anything. Thus, devolving the court into it's present incarnation where the right wants to keep the power long enough to reverse the situation & the left wishes regress further. You wonder why there's no common sense legislation? They have to acrobaticly parse a subject to make absolutely sure it doesn't include anything that the court can redefine in order to distort its context.
PS #1: John Marshall was appointed by John Adams in the early 1800s. His literal reading of the Constitution brought him into conflict with the Republicans of that day. But, even by today's standards [ he was a strong Constitutionalist (right) but believed in a strong Federal government (left) ] Marshall's a moderate.
PS #2: Don't recall incident
#2 - for some reason i always get his name wrong, it was Washington though.
He had refused to enforce the courts decision, even challenged their authority. So
what Court did was to agree narrowly, but reserve the power to make such decisions to itself.
#1 That is correct in some ways, and utterly silly in others. I just got up, and i might try to add perspective later; but it covers a couple hundred years, hundreds of justices, and i rather suspect i would want to be paid to do such a thing. Off to do the yard work...
Well, the temptation for "outcome-oriented" judicial decisions is not limited to "conservative" or "liberal" judges, although I think there are more liberal judges that would be consdidered activist. I can think of one Supreme Court decision by Justice Rhenquist called National League of Cities v. Usery about the application of the Fair Labor Standards Act to state government employees that's pretty activist. I think most conservatives today are complaining about the trend, beginning at the Supreme Court in the mid-1950s, for judges to find new constitutional rights, in particular, the so-called right of privacy.But the ebb and flow of judicial activism at the Supreme Court is nothing new; it is inherent in the functions of courts in the United States. Our legal heritage is from Britain, whose legal tradition is based on judge-made law (the so-called common law) as opposed to written, codified law enacted by legislatures, kings, emperors and so on. At common law, the reason my promise to buy your VK-60 amplifier for $5000.00 will be enforced if you agree that you will sell it to me for that price is that centuries ago, some judge or judges decided it makes sense to do that, not because there is a written statute somewhere that says so. The essence of common law is tradition, judges make a decision by consulting the records of what other judges did in the past when faced with similar situations. Those past decisions are recorded in some fashion. The competing system is the code-based system, where every law is written down. This is the rule in continental Europe and is part of that continent's heritage from the Romans.
In the US, we have a hybrid system of written statutes, written constitutions and common-law. So judges feel more free to be creative, even in their interpretation of statutes, but they always must look to past interpretations of the same statutes, and, in most cases, follow them.But you should remember that the whole concept of judicial nullification of a statute, because it is "unconstitutional," is something that Chief Justice John Marshall made up from whole cloth in the early 1800s. It has no parallel in English jurisprudence. That's judicial activism with a capital "A." Yet, today, no one seriously questions that principle; it's become a part of the tradition, which judges respect. For the same reason, I don't anticipate that Roe v. Wade, the abortion decision will be reversed by this Court, even though if it came to them for the first time today, I doubt they would reach the same result.
As for Judge Bork, what he got was a summer shower compared to the drubbing that Clarence Thomas got. There's some irony in how that turned out. Anthony Kennedy was the nominee who was confirmed in lieu of Judge Bork. Justice Kennedy is not as brilliant as Judge Bork but he's just about as conservative. I worked with Judge Bork on a Supreme Court brief about seven years ago and was surprised to see how poor his health was. He's a smoker, and the cigarettes have taken their predictable toll on his lungs. Kennedy will be on the court a lot longer than Judge Bork would have been. By the way, in person, Judge Bork is a very nice guy -- and obviously a brilliant lawyer.
that's the sort of thing that makes me want to keep reading...
Thanks!
... if a literal transaltion is used. It's when invention give way to flights of fancy & they use a mythological constitution that I object to. Then, there's nothing Constituionally that deters the legislature from removing a judge they find unconstitutional either. Thus, checks & balances are maintained.Plus, a Constitutional amendment can always override anything the judge says. Although, I wouldn't put it past any them to attempt declaring the Constitution unconstitional either.
my favorite legal scholar, Prof tribe, once said something a lot like this: 'Consider a situation where you are allowed no privacy. Of what use is any other right? How could you conduct private life, or make business arrangements that require confidentiality?'
Sorry, i didn't really do that as well as i would have liked. His writing is the best on the subject i have seen. I cannot reccomend it highly enough.
Think it through, and you might decide to put limits on government intrusion; before technological progress puts cameras in your bed, and everywhere else. *Please* look at this issue with great care.
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