My jaw literally dropped...

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Ricordanza
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My jaw literally dropped...

Post by Ricordanza » Fri Nov 09, 2018 5:12 pm

when I read this. Here's a quote from the new Chief Law Enforcement Officer of the United States, Matthew Whitaker. I'm a lawyer, but I don't think you have to be a lawyer to recognize how far, far out this is.
“There are so many” bad rulings, Mr. Whitaker said. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues.”

Modernistfan
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Re: My jaw literally dropped...

Post by Modernistfan » Fri Nov 09, 2018 5:31 pm

Yow!
I am convinced that much of the Right would like to completely scrap America's common-law-based legal system and replace it with a civil law system. ​Please note that the law of most European countries is a civil law system as distinguished from the common law system prevailing in the United Kingdom, the United States, Canada, and Australia. In a common law system, the ability of judges to make new law goes back well before 1600 in the United Kingdom at a time when Parliament had not enacted statutes covering many legal situations (this applied to tort law (typically, negligence-based), landlord-tenant law, and many other areas). In the United States, the ability of the judiciary to declare laws and regulations enacted by Congress or federal agencies unconstitutional goes back to at least the Marbury v. Madison Supreme Court decision of 1803. By contrast, in a civil law system, the legislature is paramount, and judges are expected to confine themselves solely to interpretations of the controlling codified statute. This makes the so-called "judicial activism" of a common law system virtually impossible, although it must be said that in highly fact-based areas such as torts, the distinctions between civil law and common law are somewhat reduced in practice. Subsequent to 1945, Germany (originally West Germany; this system applied to the whole of unified Germany after East Germany was reunited with the West) realized that the inability of a body separate from the legislature to place any check on the legislature as the courts in the United States were able to do had the ability to seriously damage basic civil rights and liberties (such as the "Nuremburg laws" of 1935 which essentially deprived German Jews of their citizenship rights), and they established the Bundesverfassungsgericht that had the ability to declare legislation and regulations unconstitutional. South Africa, when it emerged from apartheid, did a very similar thing, establishing an 11-member Constitutional Court much on the United States model. A number of the judges appointed to that court had been civil rights and civil liberties lawyers who had fought apartheid. The independence of the judiciary is an important principle of American democracy. Now, who is being "un-American"?

jserraglio
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Re: My jaw literally dropped...

Post by jserraglio » Fri Nov 09, 2018 5:47 pm

Also sprach Matt Whitaker: judges require a "Biblical" (i.e., "New Testament") orientation. Sorta leaves out, don't it? the likes of Brandeis, Frankfurter, Goldberg, Ginsburg, Breyer & Kagan.
Whitaker as QTD by the NY Times wrote:[the courts] “are supposed to be the inferior branch” [to the legislature]

Modernistfan
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Re: My jaw literally dropped...

Post by Modernistfan » Fri Nov 09, 2018 8:31 pm

Please see the material being put out by the American Constitution Society, the liberal counterpart to the Federalist Society. I am a member (yes, I am also a lawyer, doing predominantly intellectual property law, particularly patents (I have a Ph.D. in biochemistry and molecular biology in addition to the law degree)).
Mr. Whitaker's views seem directly in contradiction to Article VI, Clause 3 of the United States Constitution, which bars any religious test for any public office, including, of course, the federal courts. This viewpoint would not only bar Jews, but also Muslims, Buddhists, Sikhs, Hindus, Baha'i, agnostics, and atheists. As Thomas Jefferson said: "But it does me no injury for my neighbor to say that there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

lennygoran
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Re: My jaw literally dropped...

Post by lennygoran » Fri Nov 09, 2018 8:49 pm

Trump outdid himself with this pick--his best lackey since Devin Gerald Nunes. Regards, Len :(

jserraglio
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Re: My jaw literally dropped...

Post by jserraglio » Fri Nov 09, 2018 11:11 pm

And Jefferson, himself a Deist, denied the divinity of Christ.

As for Whitaker, I heard and saw the video clip tonite and interpreted, wrongly I hope, his remark about the DOJ and judges upholding New Testament values as an oblique attack on Jews in the judiciary.

Re: the Constitution. Doesn't the Trump Doctrine embrace the notion of the unitary executive that can in effect amend the Constitution via executive order?

lennygoran
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Re: My jaw literally dropped...

Post by lennygoran » Sat Nov 10, 2018 6:32 am

jserraglio wrote:
Fri Nov 09, 2018 11:11 pm
the Constitution. Doesn't the Trump Doctrine embrace the notion of the unitary executive that can in effect amend the Constitution via executive order?
Wonder when he'll start ordering the media he's been so viciously attacking to be jailed-go Acosta go! Regards, Len

https://6abc.com/white-house-suspends-c ... a/4642988/

jbuck919
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Re: My jaw literally dropped...

Post by jbuck919 » Mon Nov 12, 2018 12:43 pm

Obviously, judicial review is necessary in a country that has a written Constitution. Making new law in the common law sense is quite a different matter. In case no one has read it, the Supreme Court decision in Brown v Board preamble states in plain English that there is a universal right to a basic education, something one can scarcely find in the Constitution. As great a judge as Learned Hand did not agree with that decision, which only came across as unanimous because Earl Warren was a man to whom one could not say no. Similarly, Roe v Wade was a mistake, not because it was wrong, but because it was based on what Ralph Stein called a medical model, instead of taking the opportunity, which would have been black-letter constitutional, to declare that the state had to prove an interest to deny a right rather than arbitrarily define a new one. Now we have a situation where people are allowed to be called persons before they are born while corporations are considered persons, a situation where spending money without limit on campaigns is considered free speech, and I could go on and on. Not, I imagine, what John Marshall had in mind.

In most of Europe, which does not have common law, judges follow a separate educational path to where they are, and all real power lies with the elected part of the legislature. Even in the UK, if the House of Commons passed a bill declaring that the Queen should be beheaded, she would have to accede. Of course in the UK we have Brexit, which demonstrates that even superior democracy is not perfect. but it is far from as imperfect as the US, and common law these days seems to have little to do with it.

There's nothing remarkable about it. All one has to do is hit the right keys at the right time and the instrument plays itself.
-- Johann Sebastian Bach

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