You got the Love

It took me a little while to get around to this topic, which was suggested by soulsmile.  I think he was alluding to the argument by many that judicial activism is running amock and should be curtailed.  I had to look the term up, actually, and now that I have a firmer grasp on the subject, I though I would start with that.

The dictionary defines “oligarchy” as “a form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few.”  When you add the word “judicial” in front of it, I think the inference to be drawn is that the courts might twist the laws in such a way that the judicial branch is, in a way, making its own set of laws to the detriment of the other two branches of the United States government–the executive branch (our President) and the legislative branch (Congress).

Some call it “judicial oligarchy.”  I prefer to think of it as “checks and balances.”  

When this country was first settled, many who came to the New World were attempting to escape from monarchys that, at that time, pretty much controlled much of Europe with little to no opposition.  That is one of the most redundant statements I have ever made, I think, given that “monarchy” is defined as “supreme power or sovereignty held by a single person.”  

In any event, they had definitely felt the burn that comes with one individual ruling over all other people.  

Establishing in monarchy in this country, therefore was simply not an option.  Instead, when our independence had been won and the Constitution to govern this nation had been written, we were given a democracy consisting of the three branches mentioned above.

Clearly, they knew that one person with too much control could be oppressive.  At the same time, if each person recognize his or her own rules, chaos would ensue.  Therefore, it was determined that three branches, each with its own duties, should exist.

What I find fascinating about the article on wikipedia is that it mentions that some describe the press as somewhat of a “fourth power,” with its ability to form public opinion about issues.

But that distinction is merely “honorary.”  We have three branches.  

I found the following at the site I linked above.  I tweaked it to make a chart, but it appears here verbatim.

If you really think about it, any one of these branches could receive criticism for trying to govern to the exclusion of the other two.  

I disagree.

Here’s the way I tend to think about it:

Congress passes laws by voting on bills.  If passed, a bill then goes to the President to either sign into law, or to veto.

Check.

Some, however, criticize the President for not respective the wishes of the masses, as represented by Congress.  I know I have made this argument as recently as Bush’s recent veto of any measure designed to effectuate the removal of troops from Iraq.  What does he think he is, a dictator?

Hey, at least I am honest.

But the President’s veto does not end the matter.  When a President uses his veto power, Congress can try to get enough votes to override the President’s veto.  If it does, the bill becomes law without the President’s approval.

Check.

At that point, it is then left to the United States Supreme Court to determine the interpretation and scope of the law, and to determine whether the law, as written violates the Constitution.  If the Court does find that a law violates the Constitution, then the Court essentially has just checked Congress.

The harder issue lies in the question:  Who checks the Court?

That one is tougher, I agree, but those checks do exist.

For one thing, although the Constitution provided for the creation of the Supreme Court, all other courts have been created under authority granted by Congress in Article III.

“The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts that the Congress may from time to time ordain and establish.”

When the Supreme Court interprets a law enacted by Congress (Statutory Interpretation), and Congress disagrees with the Court’s interpretation or believes that the Court got it wrong, it can go back to the drawing board and tweak the statute under the Court’s scrutiny to clarify its meaning.  One example of this is related to the Civil Rights Act of 1964, which was amended in 1991 after a series of judicial rulings prompted Congress to rewrite the law.

Another way Congress checks the Supreme Court is by introducing Constitutional amendments for ratification of the individual states that make up this country.  Sure, it’s hard as hell to do, but it is an option.

The fact is, we need the United States Supreme Court.  It is the only branch of our government that is relatively free of political pressure.  If Congress enacts an unpopular law, the people can react by voting to replace their representatives.  If the President’s policies piss enough people off, and those policies are seen as being too heavily influenced by one political party over all others, then the people can elect a President from a different party.  The Justices of the Supreme Court, however, are appointed for life.  Not only does this permit them to do their job without being bogged down in political machinations, but we benefit by having caselaw that is relatively consistent over time.  

And if the Court’s rulings are perceived as being “bad enough,” it all comes full circle when Justices die or begin retiring.  This is the primary reason the Court is so heavily discussed in an election year.  People look at the Court and identify those Justices who may retire or die during the next President’s term.  Those who agree with the decisions of the Court will strongly consider a candidate who will appoint Justices who will maintain the status quo.  Those who oppose the Court’s ruling will favor a Presidential candidate who will appoint Justices who shift the balance and make it possible for the Court, as redistributed, to correct its “mistakes.”

We really hear about this issue in the abortion debate.

Frankly, if I am being quite honest, I don’t know that the United States Supreme Court had any authority to render its decision in Roe v. Wade, one case that pretty much everyone and their mother know well.  You can read more here, but the basic ruling was that woman’s constitutional right to privacy permits her to have an abortion at any time until the fetus has reached viability.

For those who oppose abortion, this is basically judicially-approved murder.

Yeah, yeah . . . so is the death penalty, if you think about it, as is the military invasion of another country that results in the deaths of many, for that matter (sarcasm, people, just go with that).  But, although I am pro-choice, I understand the arguments.  The flipside analogy that could be drawn, however, is the right of a property owner to defend that property with deadly force under certain circumstances when someone comes onto the property uninvited.  That is not my attempt to compare pregnancy with burglary, so please don’t go there.  Just chew on my point for a minute.

No, for all its flaws, I like the tripartite system of government we have here in the United States.  Sooner or later, each branch of our government WILL piss us off.  It’s just a simple fact, but the system we have is a good-faith attempt to limit any one branch’s role to its proper parameters.  Take away the checks and balances, and we would probably have a situation where the President, for example, wants to declare himself King of the USA.  Without the other two branches of government, he might just be able to do so.

Would you be willing to turn that over to our President, alone?  I wouldn’t.

If you think about it, the branch of government that really got the shaft in all this is Congress, which often finds its hands tied by the other two branches.  This can be seen as recently as 2002, when the balance of power in Congress shifted from the Republican Party to the Democratic Party based on the promises of the end of our occupation in Iraq.  Although efforts have been made to fulfil those promises, Presidential veto and the inability to muster enough votes to override the veto have frustrated all efforts to accomplish promised results.  

Which in turn prompts the public outcry against a Congress that is “useless,” “worthless,” incapable of following through with promises made during campaign.

It truly does suck for Congress, in my opinion.

I don’t know whether I really responded to soulsmile’s request, but those are my thoughts on our system of government.

Take it for what it’s worth.

Oh, and one last thought . . . the real kicker is that no matter how “bad” the Supreme Court gets, it has the ultimate last laugh.  Even if we wanted to get rid of the Supreme Court, Congress couldn’t do it.  If it tried to do so, the Court would point to the Constitution itself to rule and such effort unconstitutional, since the Supreme Court is explicitly mentioned in the Constitution, but wouldn’t THAT be a fun showdown to see?

I could have written that last point so much better . . . Congress could try to get rid of the Supreme Court through a Constitutional Amendment.  Would never happen, and you know someone WOULD challenge its constitutionality, but yeah, I guess Congress could try.  But I think it would be easier for Congress to get rid of the Presidency first, for that matter.  Although the point does illustrate how Congress might not have the short end of the stick, after all, if it could try to introduce Amendments to get rid of the other two branches.  Neither of the other branches could do that.  That’s actually pretty kick ass when you think about it.

Thanks for the correction, PETA . . . for once.

A couple of days ago, I wrote about Deana Damnit’s blog about the police’s inability to detain people without probable cause in order to establish their right to be in the United States.  Yesterday, another friend, Token, asked, “I thought when you were convicted 3 times of a crime you were considered a career criminal . . . why (in the case referenced in Deana’s blog) would they deport him . . . why would you send him anywhere where he could prey on more people?” (my thoughts, not the reader’s are in parentheses).

He asked if I could explain that.

I can try, although I don’t know if I’ll succeed.

First, I am not sure that the person who was deported after allegations of sexual molestation of a minor was considered a “career criminal.”  Yes, we do have “three strikes” provisions, but I think those are relatively new. 

Why would he be sent home after he was accused of sexual molestation?  Well, rape is a crime that carries a long sentence, but there are sex crimes for which relatively little prison time may be ordered.  Releasing that person through deportation proceeds is not that different from releasing ANY defendant who has served his or her time for a sex crime.  It is not just the illegal immigrant in this case who is released back into society.  There are MANY Americans who have also been permitted to reenter society after serving time for sex crimes.  To protect others, however, they are required to register as sex offenders.  That’s just how it works.

But why do we deport him or others like him, often with little or no prison time served?  The obvious reason, to me, is so we won’t have to use taxpayer dollars to feed and clothe him when he technically is not our problem.  When one is deported, there is going to be the risk that a person will return, and our government recognizes that possibility, but the alternative — to lock them up instead — is just economically unfeasible.  Plus, the fact that a person might later reenter this country and then kill a police office is just something that can’t be predicted.  In this case, the outraged public has the gift of hindsight, which leads to confusion as to why things ended the way they have.  Until it happens, though, what is the solution?

And I am asking for your thoughts on legitimate solutions . . . no firing squads.

Now, why did the jury spare him the death penalty?  I don’t know.  

Yeah, I am not afraid to admit it that I just don’t know.

It’s not that the jury believed that it was an accident on his part to shoot that police office three times.  The crime of murder necessarily requires intent.  Accidents don’t qualify.  So if murder, by its very definition, is intentional, why aren’t all convicted murderers executed?  Why is the application of the death penalty determined on a case by case basis?

It’s all about the balancing of aggravating and mitigating factors, a summary of which can be found here.  I don’t know how the jury considers these factors, as I have never served on a jury in a murder trial, but these are the standards that most states have to give to juror to help them determine the value of the life of one who has (presumably, some are innocent) ended the life of another.

It’s not a system without flaws, but then again, what is?

I remember when Bill Clinton ran for President in 1992.  There are those who drew parallels between Clinton and John F. Kennedy.   The merits of that comparison are irrelevant here.  I am just making that point about what I remember.  Now, Hillary Clinton is under fire for comments she made comparing her campaign to that of Robert F. Kennedy, who are assassinated in 1968 “minutes” after winning the California primary in June of that year.

She said, “My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don’t understand it.”

I get what she is saying . . . she is trying to justify her reasons for staying in a race for the Democratic nomination when it appears clear to nearly all that she is done by pointing to previous nominations that were not determined until June of a campaign year.

News flash, Hillary, in all likelihood, you will not be the person who clinches the nomination after the California primary, but I do hope you remember your point and concede defeat when Obama does take California (Really, does anyone think Hillary is going to win California?)

All that means is that it was a good race, with each candidate having supporters.

And?

Beyond that speaking well for a party to have two candidates with strong support, at some point the graceful thing to do is to recognize that another person has prevailed.  When one refuses to do that?  I don’t know about anyone else, but to me it sends a message that you care more about your pride than you do about the unity of your political party and the welfare of this country, whether that was your intent, or not.

But, first:  As I was writing this this morning, I was waiting to be able to log into Myspace because my profile was under “routine maintenance.”  Routine, my butt.  Still, I am officially back online and need to wrap this up so I can go get Mr. J’s anniversary present.

I have nothing against Condoleezza Rice, our Secretary of State.  For the most part, I don’t think of her at all, and usually only when she says something completely stupid, like she did when she indicated that she, alone, could restore peace in the Middle East.  Or was it the United States, in general, that was needed to do that?  I am not sure.  In any event, I found her point at the time to be quite arrogant.

She has recently made comments defending interrogation techniques used by authorities, arguing that they are “necessary to protect America from new  attacks.”  Believe it or not, I actually respect the fact that she acknowledges, at all, that the methods were extreme at times.  She’s right.  It was a difficult time, and we were all terrified of future attacks.  It doesn’t mean that I think that the Constitutional protections provided to all could have, or should have, been suspended.  

But just when I start to think I might agree with her, she goes and says this:  “But even in that environment, President Bush made clear that we were going to live up to our obligations at home and  to our treaty obligations abroad.”

Is that what we were doing when we invaded Iraq?  Honoring our treaty obligations.  Please.  At least be honest.  I don’t think that Bush is evil.  I don’t think that he has done anything that he did not truly and completely believe was in the best interest of American citizens.  I just think he is misquided as to what that is, to say the least.  But, really, honoring treating obligations?

That is the problem with the current Administration.  It makes some good points, but it never knows when to shut up.  Don’t defend a practice with an example of something that we HAVEN’T done.  There is an incredibly strong sentiment throughout the world that the United States went all vigilante on Iraq without authority from international law.  Don’t try to change that history now.

God.  Take notes from the New York governor who admitted his past affairs.  We might not like past conduct, but we will always respect someone who can be level about said conduct.

Damn.

Now, about the interrogation techniques used by the United States before Congress enacted the Detainee Treatment Act, which “prohibits cruel, inhuman and degrading treatment,” in 2005, Condy has not revealed exact techniques used in the past.  Instead, she has said that there is now clearer parameters as to what is and is not acceptable.

Uhhh, Condy, that part above about Congress trying to override the Supreme Court by establishing clearer laws?  Yeah, that is what Congress has done here, too.  

It would seem clear under the law as it has existed for years that you just can’t torture people.  Seriously.

But because of practices adopted after 9/11, what seems to many to be so clear, has had to be spelled out in black and white by Congress.  It’s not that we didn’t know that our techniques were torturous.  We just had the luxury of having no laundry list.  Because of abuse by the government, now we do.

Check.

See, it all goes back to what I was saying above:

Checks and Balances, people.

It truly is a beautiful thing.

I once lost a friend on Myspace after an encounter on a blog about Sharon Stone.  She (the blogger) had made the point that Sharon Stone was an actress, and one who was famous for little more than flashing her goodies in “Basic Instinct.”  Her job is to look pretty for the camera and to leave the political stuff to the “smart kids.”

I pointed out that she has been tested and has an IQ of 154.  In any event, I continued, one’s profession does not determine one’s entitlement to have an opinion on political matters.  Bush taught us all that.

Although I truly meant no offense to that blogger, at all, I pointed to the fact that she had not completed high school, yet she had clearly developed an interest in politics and had educated herself on a myriad of political issues.  She took it as me saying that she was not entitled to her opinions because of her limited education.  Although that was NOT my intent, I still think of the irony of that entire encounter.  She was opining that Sharon Stone should not have an opinion on political matters, and then threw a fit when she thought someone was telling her that she should not have an opinion on political matters.  I always wondered if she ever picked up on the irony of that one.

Probably not.

In any event, Sharon Stone was in the news and made me think of that day.  I ended up unsubscribing from her blog and deleting her after she basically said that she had experienced success with her limited education, and that at least she hadn’t gone to school for years to become a lawyer, only to later choke and go to work at a retail store.

Yeah, I was officially done at that point.  

I don’t expect anyone to get my previous decisions, but to classify them as choking?  Please.  You know what the rate of alcoholism is among lawyers?  The divorce rate?  The statistics related to mental illness and depression?  It’s a tough profession.  People leave it for all kinds of reasons, as I did.  Does it mean I choked?  No.

It means that my happiness ultimately became more important to me than my profession and the unhappiness that came with it.  So I quit.

Sue me.

Whatever.

The point is that I read that Sharon Stone is credited with raising $10 million for AIDS research, with the help of Madonna, in a city near Cannes, where the film festival is held each year.  Other attendees included Diddy, Mary J. Blige, Natalie Portman, and Christian Slater (whatever happened to him?).

As I was reading the article here, I was reminded of that altercation and that blogger.  Not only is Sharon Stone NOT nothing more than a pretty face lacking any capacity for intelligent thought, but she helped raised millions for research that might lead to a cure for a deadly epidemic.  

The power of celebrity.

All I could think is . . . yeah, that friend was probably right.  Stone should just shut up and look pretty.  Because using one’s fame to raise money to combat a devastating disease is just stupid.

Right?

I’m out to shop, after I go by the office for a little while to wrap up a few more things . . . but there is my stream of consciousness for today.  Hope everyone has a great long weekend.