The Revolutionary War

[Wild Cobra]

I started this new thread because the subject matter warrants a new one.


So would I be far off on your reasoning to think if you had been around in the 1700's you would have opposed the American revolution because as much as you didn't like taxation without representation, it was the law and you wouldn't break it?
That's a good tough question. I really don't know. I would have to really live that situation, or at least do some in-depth studying of the period.

I think I would be one to revolt. I'm just not certain. Keep in mind it is far more complicated than just taxes.

I think the first step is we all review the Declaration of Independence.

[Jamtas#2]

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness of his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Ok, so there is the DOI. Now, I had posed this question to you originally because you were stating that you would not have opposed slavery because it was a state's right and a law, and just beause you didn't like a law, it didn't mean that you would break it. Now, many of the colonists felt that the new tax laws imposed by Britian were unjust and fought back in part because of it. Now if you're of the thinking that just because you don't believe in a law you still shouldn't break it, I wanted to know if you were saying that it isn't right to stand up and fight against unjust laws as you seemed to be with the slavery issue?

[boutons_]

WC is a self-congratulating, world-champion cherry picker :lol

[Wild Cobra]

Ok, so there is the DOI. Now, I had posed this question to you originally because you were stating that you would not have opposed slavery because it was a state's right and a law, and just beause you didn't like a law, it didn't mean that you would break it.
Now keep in mind also that I didn't oppose the succession because the sates rights were being oppressed by the north.

I never said I wouldn't oppose slavery. I said I didn't oppose the states right by law. I would likely be one who tried to change the situation, but within legal means.


Now, many of the colonists felt that the new tax laws imposed by Britain were unjust and fought back in part because of it.
Again, it wasn't only taxes. There is a large list of items. Did you read it? Justice was a larger factor than taxes.


Now if you're of the thinking that just because you don't believe in a law you still shouldn't break it, I wanted to know if you were saying that it isn't right to stand up and fight against unjust laws as you seemed to be with the slavery issue?

It is right to stand up to unjust laws. There are different ways to do it. The colonists were not being treated right. Attempts to handle community issues were being subverted by force, and lawless practices of the soldiers and English officials.

Now it would be right to say we were unjust to the slaves. I don't know the ratios, but it seems to me that most slave owners were rather cruel at times.

Slavery was a way of life not limited to here. We only accounted for about 5% of the slave trade buyers. Slaves were world wide commodities, and treated as property. As wrong as it was, most Caucasians did consider them subhuman.

I'm pretty certain I would be one to rally for the Revolutionary War. As wrong as slavery was, I would have worked within the law to change it. It really is hard to look at such things in hindsight. Assuming the civil war was because of slavery, the government tried to impose law over constitution which was entirely wrong. Efforts should have continued to make constitutional changes rather than violating the constitution. Several attempts were made within English law to keep America a place people could pursue a good life, yet the English soldiers and governing bodies never cared.

I really need to research the topic for better answers. Suffice it to say I feel the Revolutionary was a war of last resort, and just.

[clambake]

so, you're assuming the civil war was because of slavery?

[xrayzebra]

I think I would have to have lived in that period to know how I
felt about slavery. Something must be remembered. Slavery
did exist and had for some time and most people during that
period did not look down upon slave owners. There were also
indenture slaves. All slaves were not black. I lived many years
where there were two worlds for blacks and whites in the
United States. My grandparents and parents thought of this
a normal thing. I was raised to think the same. But, as I
grew older, and many my age felt the same, I felt it was wrong
and argued with my parents and grandparents about it. And
what happened, the Supreme Court made a ruling on schools
and other court rulings changed a social climate, which although
wrong, that was alien to all citizens. It also made fence sitters
to make decisions on who they supported. In short it resulted
in a situation that still exist to this day. People choose sides.
This does not mean all whites, or blacks for that matter,
discriminate against the other race. I mean people will defend
their positions. Racism in every form exist today against all
races and nationalities, in this country and others.

Slavery is wrong in my opinion, but saying that I say it in todays
terms and my lifetime. I cannot apologize for what others did
before me. Nor can I take credit for what others did before me.
I can only say how I feel and either benefit or suffer the
consequences for what others did before me.

[Jamtas#2]

Ok, I'll answer a few questions at once here.
Clambake- No I know the civil war was fought over states rights, not just over slavery or the spread of it into the west as the US was growing.

Xray- I agree that it is easier to look back and see injustice. I'll bet in 50 years people will look back at those who were up in arms about homosexuals being able to marry and adopt and view them with the same mindset as we view those who believed in discrimination, slavery etc...but that doesn't mean that going with the flow was right.

WC-Ok, I agree that the taxation wasn't the only reason, but it was a major issue and cause (plus it allowed me to ask the question I posed to you). You stated in the other thread that you were against slavery, but it was the right of the states to do so. That does not gel with the mindset of how wrong it is and that the laws must be changed to outlaw the practice.
I'm pretty certain I would be one to rally for the Revolutionary War. As wrong as slavery was, I would have worked within the law to change it. This strikes me. You would rally for the revolution because of the injustice that was going on, but in the case of slavery (far worse injustice IMO) you'd rather work within the law?

[FromWayDowntown]

It's one thing to say that you'll limit yourself legal means to challenge law that you deem unjust (although that raises questions about what the legal means are to change a law -- in a system with a separated legislature and judiciary, is only one avenue appropriate?) and another to think that the use of legal means will be effective when those means are decidedly stacked against you. Revolution, where it is feasible, stems from both the unavailability of legal means from a systemic standpoint and from the practical unavailability of any means to change the law. That is, if the system exists, but the system is corrupt or inflexible or non-representative, all the process in the world won't make the difference that bullets and blood will make.

[DarkReign]

I think I would have to have lived in that period to know how I
felt about slavery. Something must be remembered. Slavery
did exist and had for some time and most people during that
period did not look down upon slave owners. There were also
indenture slaves. All slaves were not black. I lived many years
where there were two worlds for blacks and whites in the
United States. My grandparents and parents thought of this
a normal thing. I was raised to think the same. But, as I
grew older, and many my age felt the same, I felt it was wrong
and argued with my parents and grandparents about it. And
what happened, the Supreme Court made a ruling on schools
and other court rulings changed a social climate, which although
wrong, that was alien to all citizens. It also made fence sitters
to make decisions on who they supported. In short it resulted
in a situation that still exist to this day. People choose sides.
This does not mean all whites, or blacks for that matter,
discriminate against the other race. I mean people will defend
their positions. Racism in every form exist today against all
races and nationalities, in this country and others.

Slavery is wrong in my opinion, but saying that I say it in todays
terms and my lifetime. I cannot apologize for what others did
before me. Nor can I take credit for what others did before me.
I can only say how I feel and either benefit or suffer the
consequences for what others did before me.

Thats a damn good post.

[clambake]

It's one thing to say that you'll limit yourself legal means to challenge law that you deem unjust (although that raises questions about what the legal means are to change a law -- in a system with a separated legislature and judiciary, is only one avenue appropriate?) and another to think that the use of legal means will be effective when those means are decidedly stacked against you. Revolution, where it is feasible, stems from both the unavailability of legal means from a systemic standpoint and from the practical unavailability of any means to change the law. That is, if the system exists, but the system is corrupt or inflexible or non-representative, all the process in the world won't make the difference that bullets and blood will make.

perfect

[101A]

Thats a damn good post.

Ditto

[101A]

It's one thing to say that you'll limit yourself legal means to challenge law that you deem unjust (although that raises questions about what the legal means are to change a law -- in a system with a separated legislature and judiciary, is only one avenue appropriate?) and another to think that the use of legal means will be effective when those means are decidedly stacked against you. Revolution, where it is feasible, stems from both the unavailability of legal means from a systemic standpoint and from the practical unavailability of any means to change the law. That is, if the system exists, but the system is corrupt or inflexible or non-representative, all the process in the world won't make the difference that bullets and blood will make.

The board is in rare form today.

[FromWayDowntown]

I didn't mean to end the discussion -- I had hoped to provoke additional discussion because I find the topic to be an interesting one.

I wonder, with the cries of judicial activism so frequently heard from the right, if conservatively-oriented posters would truly support attempts to find legal recourse against unjust laws solely through the legislative process. It's one thing to say that's the preferred course, but when it's your ox being gored and the legislature is the body responsible for goring that ox, is a society truly without hope for meaningful change in the law if the legislature is dead-set on maintaining the law you want changed?

Look, for instance, at Brown v. Board of Education. There is certainly plenty of historical evidence to suggest that those aggreived by the separate but equal doctrine (which became intertwined in many state and local legislative enactments) tried to change the effect of that doctrine by changing specific statutes or ordinances. They were universally unsuccessful, leaving the courts as the sole means to achieve the sort of social change that was painfully necessary. In that sense, Brown v. Board of Education stands as one of the landmark acts of what is today called "judicial activism" -- legislatures wouldn't change the law, but a court said they must. Would those who decry judicial activism and who claim to be committed to changing the law through "legal means" truly limit themselves to only seeking change through legislative efforts? If not, I think there's an evident hypocrisy (though I've written about this before in this forum) in the gnashing of teeth about courts that strike down laws; isn't that, after all, the very sort of "legal means" that those who would challenge unjust laws are contemplating?

[Holt's Cat]

It means we should be vigilant whenever our Constitutional rights are dismissed as artifacts, be it by initiatives from the political left or right in this country today.

Of course, what happens when the courts go astray...?

[Whisky Dog]

It means we should be vigilant whenever our Constitutional rights are dismissed as artifacts, be it by initiatives from the political left or right in this country today.

Of course, what happens when the courts go astray...?

Start calibrating the scope on your sniper rifle.

[PixelPusher]

All of these posts regarding revolution and slavery brought this quote to mind.



"Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour; a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason." - Thomas Paine, from the paphlet "Common Sense", written in 1776

[Wild Cobra]

so, you're assuming the civil war was because of slavery?
No, it was for more than just slavery, but slavery was a primary trigger. It was about states rights, slavery being part of that.

[xrayzebra]

.

Of course, what happens when the courts go astray...?

HC, that is a great question. What does happen, in my
75 years I have never seen the court challenged. I know
Andy Jackson ignored the Supreme Court in one case:

Supreme Court Justice Stephen Breyer, in a 2003 Boston College commencement address, told this story of President Andrew Jackson and the Supreme Court:

In 1832 the Cherokee Indian tribe lived on land guaranteed them by treaty. They found gold on that land. Georgia tried to seize the land. The Cherokees sued. And eventually the Supreme Court, in Worcester v. Georgia, held in favor of the Cherokees.

Georgia then refused to obey the Court. President Andrew Jackson reportedly said, "John Marshall has made his decision; now let him enforce it." And Jackson sent troops to evict the Cherokees, who traveled the Trail of Tears to Oklahoma, thousands dying along the way.

Is that the only alternative. And could a President or
Congress get away with it today?

In my opinion the United States would almost, if not
actually, have a civil war if someone tried it today.
But what do you do if the courts go astray?

[DarkReign]

Is that the only alternative. And could a President or
Congress get away with it today?

In my opinion the United States would almost, if not
actually, have a civil war if someone tried it today.
But what do you do if the courts go astray?
Youre damn right this country would revolt. Or should I say, I sincerely hope we would.

But again, in Jackson's time the public at large didnt view Native Americans as equals, even subhuman. A lot of men were veterans of Indian campaigns therefore held direct hatred to them. Another example of America's lack of a social conscience.

[FromWayDowntown]

In my opinion the United States would almost, if not
actually, have a civil war if someone tried it today. But what do you do if the courts go astray?

What constitutes going astray?

The whole point of having courts, it seems to me, is to have a branch of government that is basically an arbiter to protect rights. Part of that effort is vesting courts with the power to determine that the acts of a popularly-elected body might be contrary to the basic rights that are guaranteed to individuals. If the courts are endeavoring to uphold those rights -- or to determine the scope of those rights -- can they really go astray?

The notion that courts should be answerable to the political majority strikes me as laughable -- such a thought would do little more than make the courts a rubber stamp for the whim of the political majority and would protect nobody other than the political majority.

Take Brown v. Board of Education as an example: had the Supreme Court been truly responsive to the political majorities in the states whose laws were challenged in that case, it would have been obligated to uphold the law. The beauty of a third branch of government is ensuring that it has the ability to impose checks on the branches that are responsive to political whims. That check comes in the form of an ability to strike down popularly-favored laws that infringe upon the existing rights of a particular litigant. Those decisions tend -- not surprisingly -- to be unpopular; of course they are, because the law that was struck down is one that was enacted (generally) by those who are responsive to the political majority. Courts, though, have to be imbued with that power -- the power to make unpopular decisions that vindicate the rights of those who are unprotected by the law -- if they are to have any impact in resolving disputes between the citizens and their government.

That's not to say that the courts should always disfavor the government -- far from it; but the courts should not ever be bound to respond to a political majority simply because it is the political majority.

The simple answer to xray's question is that when courts rule in a manner that is deemed to be unsatisfactory by the majority, the legislature can act to modify the rejected law in an effort to make it permissible. If the modified law cannot withstand scrutiny, try again. It doesn't strike me as a reasonable solution to decide that courts should only uphold the existing political orthodoxy or that they should be deprived of the right to decide challenges to enacted laws. If that were the case, I think the sort of discontent that sparked the Revolutionary War would likely fester and enhance the likelihood of war.

[TLWisfoine]

Now keep in mind also that I didn't oppose the succession because the sates rights were being oppressed by the north.

I never said I wouldn't oppose slavery. I said I didn't oppose the states right by law. I would likely be one who tried to change the situation, but within legal means.


Again, it wasn't only taxes. There is a large list of items. Did you read it? Justice was a larger factor than taxes.


It is right to stand up to unjust laws. There are different ways to do it. The colonists were not being treated right. Attempts to handle community issues were being subverted by force, and lawless practices of the soldiers and English officials.

Now it would be right to say we were unjust to the slaves. I don't know the ratios, but it seems to me that most slave owners were rather cruel at times.

Slavery was a way of life not limited to here. We only accounted for about 5% of the slave trade buyers. Slaves were world wide commodities, and treated as property. As wrong as it was, most Caucasians did consider them subhuman.

I'm pretty certain I would be one to rally for the Revolutionary War. As wrong as slavery was, I would have worked within the law to change it. It really is hard to look at such things in hindsight. Assuming the civil war was because of slavery, the government tried to impose law over constitution which was entirely wrong. Efforts should have continued to make constitutional changes rather than violating the constitution. Several attempts were made within English law to keep America a place people could pursue a good life, yet the English soldiers and governing bodies never cared.

I really need to research the topic for better answers. Suffice it to say I feel the Revolutionary was a war of last resort, and just.

From what I understand and correct me if I'm wrong, you would be willing to take up arms in the fight for independence from England, but on the issue of slavery you would want to go through the proper legal channels just so you wouldn't violate the constitution and the rights of the oppressors of slaves. Do you see one being a worse injustice to a group of people than the other? I'm all for going through the proper legal channels in order to get things done, but I'm sorry I just can't worry about upholding a constitution and a law that permits the bondage of human beings, and I damn sure would not be worried about the "rights" of such people who would hold another human in bondage. But as stated before, this is all in hindsight and my obvious bias in this matter.

[101A]

I didn't mean to end the discussion -- I had hoped to provoke additional discussion because I find the topic to be an interesting one.

I wonder, with the cries of judicial activism so frequently heard from the right, if conservatively-oriented posters would truly support attempts to find legal recourse against unjust laws solely through the legislative process. It's one thing to say that's the preferred course, but when it's your ox being gored and the legislature is the body responsible for goring that ox, is a society truly without hope for meaningful change in the law if the legislature is dead-set on maintaining the law you want changed?

Look, for instance, at Brown v. Board of Education. There is certainly plenty of historical evidence to suggest that those aggreived by the separate but equal doctrine (which became intertwined in many state and local legislative enactments) tried to change the effect of that doctrine by changing specific statutes or ordinances. They were universally unsuccessful, leaving the courts as the sole means to achieve the sort of social change that was painfully necessary. In that sense, Brown v. Board of Education stands as one of the landmark acts of what is today called "judicial activism" -- legislatures wouldn't change the law, but a court said they must. Would those who decry judicial activism and who claim to be committed to changing the law through "legal means" truly limit themselves to only seeking change through legislative efforts? If not, I think there's an evident hypocrisy (though I've written about this before in this forum) in the gnashing of teeth about courts that strike down laws; isn't that, after all, the very sort of "legal means" that those who would challenge unjust laws are contemplating?


Brown is good law, based (obviously) on the 14th amendment, and with it the court upheld what the legislature had already done by passing that. The courts struck down laws that ran contrary to the highest law in the land - not just laws that the court personally (collectively) didn't like.

Judicial activism comes when the court (in many peoples' opinions) overstep their bounds, such as in Roe. There is no "Right to Privacy" in the Constitution, much less one that can be defined as broadly as it is in Roe. The legislature didn't act AT ALL on this subject, in my opinion giving the court no say in the matter - so the imperial courts acted as they saw fit, in a power grab that undermines the supposed separation of those powers.

[101A]

In my opinion the United States would almost, if not
actually, have a civil war if someone tried it today.
But what do you do if the courts go astray?

It would depend on where the military lined up, frankly.

If the military is unified; that side wins.

The second amendment notwithstanding.

[101A]

Brown is good law, based (obviously) on the 14th amendment, and with it the court upheld what the legislature had already done by passing that. The courts struck down laws that ran contrary to the highest law in the land - not just laws that the court personally (collectively) didn't like.

Judicial activism comes when the court (in many peoples' opinions) overstep their bounds, such as in Roe. There is no "Right to Privacy" in the Constitution, much less one that can be defined as broadly as it is in Roe. The legislature didn't act AT ALL on this subject, in my opinion giving the court no say in the matter - so the imperial courts acted as they saw fit, in a power grab that undermines the supposed separation of those powers.


For that matter Supreme Court judicial review is a construct of judicial activism itself....

[FromWayDowntown]

The legislature didn't act AT ALL on this subject, in my opinion giving the court no say in the matter - so the imperial courts acted as they saw fit, in a power grab that undermines the supposed separation of those powers.

That's incorrect. Roe was before the Supreme Court of the United States because a Texas law prohibited Norma McCorvey from having an abortion. McCorvey's individual case aside, the Texas Legislature had clearly acted in that realm and McCorvey's suit challenged that law. The Supreme Court didn't just unilaterally decide whether to prohibit states from outlawing abortions -- the Court was specifically asked to decide whether a State could ban abortion without depriving a woman of a constitutional right (there, a right to privacy).

Moreover, Roe didn't invent the idea of a right to privacy as a necessary part of the protections afforded by certain portions of the Bill of Rights; that notion had been recognized several years earlier in Griswold v. Connecticut, a case in which the Court held that a state would violate the privacy rights of individuals by prohibiting the use of contraceptives.

Putting Griswold (precedent) up against the question presented in Roe, the Court decided 7-2 to strike down the Texas law. I don't disagree that the trimester construct of Roe is an endeavor in activism by Justice Blackmon, who fancied himself a medical expert, but I completely disagree that the legal determination in Roe -- that a State cannot outlaw abortion -- is activist; it is the determination of a legal question concerning the extent to which a legislature's power is limited by an individual constitutional right recognized in earlier circumstances.

That some don't like that decision has become a rallying cry to denounce liberally-minded judges as activists. I think that it really is a complaint that the decision didn't come out the way the majority (or perceived majority) wanted it to. And that, in a sense, is exactly my point -- where an individual in the political minority believes he or she has a particular constitutional right to do (or not do) something and has no practical means to vindicate that right through legislative action, what means should exist to vindicate the right other than the courts? If there is no court to determine that the legislature has acted in a way that diminishes or impairs constitutional rights, how on Earth will that right ever be capable of vindication. In arguing for ratification of the Constitution, Madison explained in Federalist 51 the need for checks and balances among the branches of a tripartite government; couple that with the general idea in Federalist 10 that the Constitution was intended, among other things, to protect against the "tyranny of the majority," and it becomes an immediately sensible idea to vest a check on legislative power in the judiciary, which, in the federal system, is the only non-resposive branch of the government. Given the problems that created the need for Revolution in the first place, it would stand to reason that the Founding Fathers believed implicitly that those who were political minorities should have recourse to vindicate rights through means other than the popularly-elected branches of government. Notions of judicial review, while articulated expressly in Chief Justice Marshall's opinion in Marbury v. Madison, were not unilaterally created by Chief Justice Marshall. The idea is apparent in several of the Federalist papers, suggesting an understanding on the part of Hamilton, Madison, and Jay that the check of judicial review was implicitly a power provided to the judiciary in the Constitution.

[101A]

That's incorrect. Roe was before the Supreme Court of the United States because a Texas law prohibited Norma McCorvey from having an abortion. McCorvey's individual case aside, the Texas Legislature had clearly acted in that realm and McCorvey's suit challenged that law. The Supreme Court didn't just unilaterally decide whether to prohibit states from outlawing abortions -- the Court was specifically asked to decide whether a State could ban abortion without depriving a woman of a constitutional right (there, a right to privacy).

Moreover, Roe didn't invent the idea of a right to privacy as a necessary part of the protections afforded by certain portions of the Bill of Rights; that notion had been recognized several years earlier in Griswold v. Connecticut, a case in which the Court held that a state would violate the privacy rights of individuals by prohibiting the use of contraceptives.

Putting Griswold (precedent) up against the question presented in Roe, the Court decided 7-2 to strike down the Texas law. I don't disagree that the trimester construct of Roe is an endeavor in activism by Justice Blackmon, who fancied himself a medical expert, but I completely disagree that the legal determination in Roe -- that a State cannot outlaw abortion -- is activist; it is the determination of a legal question concerning the extent to which a legislature's power is limited by an individual constitutional right recognized in earlier circumstances.

That some don't like that decision has become a rallying cry to denounce liberally-minded judges as activists. I think that it really is a complaint that the decision didn't come out the way the majority (or perceived majority) wanted it to. And that, in a sense, is exactly my point -- where an individual in the political minority believes he or she has a particular constitutional right to do (or not do) something and has no practical means to vindicate that right through legislative action, what means should exist to vindicate the right other than the courts? If there is no court to determine that the legislature has acted in a way that diminishes or impairs constitutional rights, how on Earth will that right ever be capable of vindication. In arguing for ratification of the Constitution, Madison explained in Federalist 51 the need for checks and balances among the branches of a tripartite government; couple that with the general idea in Federalist 10 that the Constitution was intended, among other things, to protect against the "tyranny of the majority," and it becomes an immediately sensible idea to vest a check on legislative power in the judiciary, which, in the federal system, is the only non-resposive branch of the government. Given the problems that created the need for Revolution in the first place, it would stand to reason that the Founding Fathers believed implicitly that those who were political minorities should have recourse to vindicate rights through means other than the popularly-elected branches of government. Notions of judicial review, while articulated expressly in Chief Justice Marshall's opinion in Marbury v. Madison, were not unilaterally created by Chief Justice Marshall. The idea is apparent in several of the Federalist papers, suggesting an understanding on the part of Hamilton, Madison, and Jay that the check of judicial review was implicitly a power provided to the judiciary in the Constitution.


I'm in over my head with you, FWD, but I understand what Roe did in striking down a state's law. My point was that the Federal legislature had not, in my opinion, addressed abortion in the constitution, and that because of (gonna bring WC back into this) the 10th amendment, the Supreme Court should have had no jurisdiction in the case. Stretching the constitution beyond the reasonable limits is the Judicial Activism of Roe.

If there was an amendment in the Constitution guaranteeing a right to an abortion, like there is an amendment guaranteeing a right to not be discriminated against, specifically, THEN the court would not be activist - it would simply be doing its job.

[101A]

Moreover, Roe didn't invent the idea of a right to privacy as a necessary part of the protections afforded by certain portions of the Bill of Rights; that notion had been recognized several years earlier in Griswold v. Connecticut, a case in which the Court held that a state would violate the privacy rights of individuals by prohibiting the use of contraceptives.



Also, that paragraph puts you on record as having actually thought about Roe; now you can't be on the Supreme Court, Counselor.

[FromWayDowntown]

I'm in over my head with you, FWD, but I understand what Roe did in striking down a state's law. My point was that the Federal legislature had not, in my opinion, addressed abortion in the constitution, and that because of (gonna bring WC back into this) the 10th amendment, the Supreme Court should have had no jurisdiction in the case. Stretching the constitution beyond the reasonable limits is the Judicial Activism of Roe.

But it does become a federal issue because the Fourteenth Amendment incorporates fundamental rights to the States and precludes state legislatures from eviscerating those rights. It would be nonsensical to say that the Tenth Amendment somehow prohibits the Supreme Court of the United States from considering whether a state enactment is impermissible when the right to be vindicated is one that is ensured by the federal constitution. At that point, you might as well say that the federal constitution is just advisory to the states. Clearly, that isn't the case.


If there was an amendment in the Constitution guaranteeing a right to an abortion, like there is an amendment guaranteeing a right to not be discriminated against, specifically, THEN the court would not be activist - it would simply be doing its job.

That strikes me as an obscenely narrow view of the Bill of Rights and the other amendments to the Constitution. The broad language used to frame amendments requires judicial construction by courts considering the existence of a claimed right. To conclude otherwise, it seems to me, would necessitate a Constitution with thousands and thousands of amendments to address the many things that we societally agree are protected (though not expressly) by the existing language. We're not talking about creating rights out of wholecloth; we're talking about examining broad language to determine if particular rights are within the scope of that language. I see a basic difference in those two concepts. If you don't, I guess we'll just have to agree to disagree.

I'll trust the long-recognized understanding that the Framers believed their document was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Constitution is the fairly recent construct of those who simply dislike the decisions that the courts are making.

And, to that end, I'll also suggest that the broad reading of constitutional language is a staple of both sides of the political spectrum. For instance, the Second Amendment does NOT guarantee an individual the right to possess any firearm he wishes; it EXPRESSLY prohibits the government from totally disarming the public. That is, saying that the government cannot deprive the People of the right to bear arms is not the same as saying that the government cannot limit the number or type of arms that a person might bear. It's a nuanced point, I'll grant you, but the express language of the Second Amendment would seem only to limit the government's ability to take away all arms. In that sense, isn't it suggestive of the very same sort of activism you're complaining about for those on the right, who maintain that the Second Amendment creates a safe harbor for ALL weapons, to argue that any governmental restriction on firearms is unconstitutional? Aren't we arguing then about what that language means?

If we're going to argue about what the language means, isn't it permissible to consider whether the effect of a number of amendments (the First, the Third, the Fourth, the Ninth) is to create a zone of privacy that protects the private doings of individuals from governmental infringement? How come nobody ever argues that the decision in Griswold is somehow indicative of judicial activism -- after all, there's nothing in the Constitution that expressly deprives a State of the right to outlaw contraceptives.

[FromWayDowntown]

Also, that paragraph puts you on record as having actually thought about Roe; now you can't be on the Supreme Court, Counselor.

Trust me, there's much more than that to keep me off the Supreme Court.

:lol

[FromWayDowntown]

My point here isn't to run off on defining judicial activism or defending courts.

I do think, though, that if someone is going to claim a resort to legal process as an alternative to revolution in an effort to change laws, we should, at the very least, determine what legal process is. That conversation, it seems to me, necessarily brings about a discussion about the roles of courts and legislatures and the extent to which a court might (or should) be called upon to invalidate legislative acts that infringe upon protected rights.

Sorry if that's taking the thread off it's intended course . . . .

[101A]

But it does become a federal issue because the Fourteenth Amendment incorporates fundamental rights to the States and precludes state legislatures from eviscerating those rights. It would be nonsensical to say that the Tenth Amendment somehow prohibits the Supreme Court of the United States from considering whether a state enactment is impermissible when the right to be vindicated is one that is ensured by the federal constitution. At that point, you might as well say that the federal constitution is just advisory to the states. Clearly, that isn't the case.



That strikes me as an obscenely narrow view of the Bill of Rights and the other amendments to the Constitution. The broad language used to frame amendments requires judicial construction by courts considering the existence of a claimed right. To conclude otherwise, it seems to me, would necessitate a Constitution with thousands and thousands of amendments to address the many things that we societally agree are protected (though not expressly) by the existing language. We're not talking about creating rights out of wholecloth; we're talking about examining broad language to determine if particular rights are within the scope of that language. I see a basic difference in those two concepts. If you don't, I guess we'll just have to agree to disagree.

I'll trust the long-recognized understanding that the Framers believed their document was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Constitution is the fairly recent construct of those who simply dislike the decisions that the courts are making.

And, to that end, I'll also suggest that the broad reading of constitutional language is a staple of both sides of the political spectrum. For instance, the Second Amendment does NOT guarantee an individual the right to possess any firearm he wishes; it EXPRESSLY prohibits the government from totally disarming the public. That is, saying that the government cannot deprive the People of the right to bear arms is not the same as saying that the government cannot limit the number or type of arms that a person might bear. It's a nuanced point, I'll grant you, but the express language of the Second Amendment would seem only to limit the government's ability to take away all arms. In that sense, isn't it suggestive of the very same sort of activism you're complaining about for those on the right, who maintain that the Second Amendment creates a safe harbor for ALL weapons, to argue that any governmental restriction on firearms is unconstitutional? Aren't we arguing then about what that language means?

If we're going to argue about what the language means, isn't it permissible to consider whether the effect of a number of amendments (the First, the Third, the Fourth, the Ninth) is to create a zone of privacy that protects the private doings of individuals from governmental infringement? How come nobody ever argues that the decision in Griswold is somehow indicative of judicial activism -- after all, there's nothing in the Constitution that expressly deprives a State of the right to outlaw contraceptives.


I did not mean to suggest, although I probably did suggest, that we needed a n exhaustive, explicit list of things that could, and could not be considered "rights" delineated in the Constitution. It is a fuzzy line in my mind that one crosses, however, when deciding what IS covered and what is not. To paraphrase, I think, Strom Thurmond, I can't tell you exactly what (activism) is, but I know it when I see it. (and honestly it probably coincides with my own political/moral beliefs more than I would like to admit).

[101A]

My point here isn't to run off on defining judicial activism or defending courts.

I do think, though, that if someone is going to claim a resort to legal process as an alternative to revolution in an effort to change laws, we should, at the very least, determine what legal process is. That conversation, it seems to me, necessarily brings about a discussion about the roles of courts and legislatures and the extent to which a court might (or should) be called upon to invalidate legislative acts that infringe upon protected rights.



Yes we should.

[Wild Cobra]

From what I understand and correct me if I'm wrong, you would be willing to take up arms in the fight for independence from England, but on the issue of slavery you would want to go through the proper legal channels just so you wouldn't violate the constitution and the rights of the oppressors of slaves.

Yes. Keep in mind that slavery was a legal trade world wide. I just looked up the statistics a day or two ago. Earlier I stated 5% as the number we had in America during the early period. Well, that is high for a world wide number. We had 5.4% of the slaves in the Americas, of the Atlantic trade! Where world wide puts us at is anyone's guess, but it could be below 1%.

Now the "New World" and dreams of America were recognized by people of several nations, not just England. I think anyone of English decent of the period would feel traitorous to revolt. However, most of the population of the colonies were other then English, right?

Why should anyone of other than English decent feel wrong to revolt?


Do you see one being a worse injustice to a group of people than the other?

Slavery was absolutely an incredible injustice. I have never said otherwise. Are you cherry picking my remarks?

If you really look deeper into some slave facts, it is likely that the slaves not sold, would have been executed. A significant share of slaves were from rival tribes, captured in warfare. They only lived because they could be sold, therefore they were chained rather than slaughtered.

Maybe the injustice could be considered merciful? It's one of those hard facts I don't like, but it is fact!


I'm all for going through the proper legal channels in order to get things done, but I'm sorry I just can't worry about upholding a constitution and a law that permits the bondage of human beings, and I damn sure would not be worried about the "rights" of such people who would hold another human in bondage. But as stated before, this is all in hindsight and my obvious bias in this matter.

Just try to look at things from a perspective where such things were the commonplace. Not by today's values.

[PixelPusher]

I'll trust the long-recognized understanding that the Framers believed their document was flexible and not exhaustive; I maintain that the argument that the need for express delineation of every specific right vested by the Constitution is the fairly recent construct of those who simply dislike the decisions that the courts are making.
I challenge you to find that in the Constitution!

[TLWisfoine]

Yes. Keep in mind that slavery was a legal trade world wide. I just looked up the statistics a day or two ago. Earlier I stated 5% as the number we had in America during the early period. Well, that is high for a world wide number. We had 5.4% of the slaves in the Americas, of the Atlantic trade! Where world wide puts us at is anyone's guess, but it could be below 1%.

Now the "New World" and dreams of America were recognized by people of several nations, not just England. I think anyone of English decent of the period would feel traitorous to revolt. However, most of the population of the colonies were other then English, right?

Why should anyone of other than English decent feel wrong to revolt?

Slavery was absolutely an incredible injustice. I have never said otherwise. Are you cherry picking my remarks?

If you really look deeper into some slave facts, it is likely that the slaves not sold, would have been executed. A significant share of slaves were from rival tribes, captured in warfare. They only lived because they could be sold, therefore they were chained rather than slaughtered.

Maybe the injustice could be considered merciful? It's one of those hard facts I don't like, but it is fact!

Just try to look at things from a perspective where such things were the commonplace. Not by today's values.

They were still subjects of the English crown, thus making them English. Using your logic, shouldn't they have just gone through the legal channels to express their displeasure with the English government instead of revolting? Also, during the revolution weren't there more Loyalists in the country than Patriots?

By the mid 19th century if I am not mistaken most of the countries in the Western world that had previously allowed slavery had it abolished leaving America as one of the few countries in the West to still permit slavery. Also, most people in the U.S. although they did view blacks as being inferior, disagreed with slavery and just wanted them out of the country. Didn't President Lincoln offer the slave owners in the south compensation in order for them to release their slaves and have them deported to Liberia or some other African nation? So to say that slavery during the pre-Civil War years in America was commonplace and legal is wrong, but I could be wrong and it has been over 30 years since I learned this in school. Correct if I am wrong.

Question, do you feel that the people such as Denmark Vesey, Nat Turner, John Brown and others who took up arms against slave holders in the pre-Civil War years were in the wrong for doing so? Also I am going to have to disagree with your assertion that slaves being sold off into slavery was in any way "merciful." You are aware of the horrors/genocide of the Middle Passage and the number of slaves that died during that passage right? Given a choice between bondage or death, "Give me Liberty or give me death."

[PixelPusher]

They were still subjects of the English crown, thus making them English. Using your logic, shouldn't they have just gone through the legal channels to express their displeasure with the English government instead of revolting? Also, during the revolution weren't there more Loyalists in the country than Patriots?

The colonists had no legal recourse, they had no representation in Parliament...hence the whole "no taxation without representation" thing.

[Jamtas#2]

The colonists had no legal recourse, they had no representation in Parliament...hence the whole "no taxation without representation" thing.

Neither did the slaves. They had to depend on others who saw that it was wrong to speak for them. Should the Americans have let sympathizers in England speak for them and wait until everything was resolved?

[PixelPusher]

Neither did the slaves. They had to depend on others who saw that it was wrong to speak for them. Should the Americans have let sympathizers in England speak for them and wait until everything was resolved?
Americans did move politically towards the abolition of slavery (resulting in the civil war); there was no "Free the American Colonies from British Rule" political movement in England.

[Jamtas#2]

Americans did move politically towards the abolition of slavery (resulting in the civil war); there was no "Free the American Colonies from British Rule" political movement in England.

Maybe if the colonists had to wait for 100 years the movement would have started.

[Jamtas#2]

I'm really surprised at the tone of this. When it comes being taxed, people are all for war. But in the situation of enslaving another human being, let's not rush into things and take a more legal approach.
I guess it is more of a situation of the taxes affect me directly, but I wouldn't have been a slave so it isn't as big an issue for me.

[PixelPusher]

I'm really surprised at the tone of this. When it comes being taxed, people are all for war. But in the situation of enslaving another human being, let's not rush into things and take a more legal approach.
I guess it is more of a situation of the taxes affect me directly, but I wouldn't have been a slave so it isn't as big an issue for me.
You won't get any Confederate sympathy from me, but I think you have this backwards, it wasn't abolitionist who were compelled to go to war to free slaves, it was slave owners who were compelled to go to war to prevent the freeing of slaves.

[Wild Cobra]

You won't get any Confederate sympathy from me, but I think you have this backwards, it wasn't abolitionist who were compelled to go to war to free slaves, it was slave owners who were compelled to go to war to prevent the freeing of slaves.
Thing is, when the south succeeded, they did it successfully. The first seven states that succeeded did so between 12/20/1860 and 2/1/1861. There was more than two months before the war started. Sure, the North made things difficult for the south, but things would have been fine until that fateful day of 4/12/1861 when the south attacked Ft. Sumter. Four more states succeeded after that! That event never needed to take place. Question then is, would it have happened elsewhere, or would we have had a divided nation where real talk and compromise could have occurred?

[Holt's Cat]

Congress shall make no law, unless it's something we really want. And thus ends our liberty.

[Wild Cobra]

Congress shall make no law, unless it's something we really want. And thus ends our liberty.
Sounds like the way the ACLU restrics religion!

[Holt's Cat]

Both sides do that nowadays. Sure, you cannot have a Constitution that presupposes every future possible contentious issue, but that doesn't mean the general edicts set forth in the Constitution have to be whittled away through tortured judicial hair-splitting.

Otherwise, the attempts of the current administration to engage in activities which would appear on the surface in infringe on our liberty are valid. The Constitution is meant to piss off the majority, not to be turned into a malleable mess that can say what we want it to say.

[PixelPusher]

Thing is, when the south succeeded, they did it successfully. The first seven states that succeeded did so between 12/20/1860 and 2/1/1861. There was more than two months before the war started. Sure, the North made things difficult for the south, but things would have been fine until that fateful day of 4/12/1861 when the south attacked Ft. Sumter. Four more states succeeded after that! That event never needed to take place. Question then is, would it have happened elsewhere, or would we have had a divided nation where real talk and compromise could have occurred?
"real talk and compromise" about slavery? We had senators beating up each other with canes on the floor of Congress over this issue several years before the succession.