I've been pondering this lately, and I haven't come to any concrete conclusions on this yet. I'd like to see what others have to say on the topic.
As the abortion debate rages on, along with other very devisive issues such as the recent axing of campaign finance laws, it seems as if the court system become a kind of dictatorship for American society.
I think it's a very good thing that we have a separate branch to judge if the legislative or executive branches have overstepped their bounds and are encroaching on individual liberties protected by the Bill of Rights, but it seems a little absurd that a government supposedly formed on the principle of self-rule should have to jump through so many hoops to amend the Constitution just to overturn a decision made by 9 unelected guys in black robes.
Funny thing about this: no where in Article III of the US Constitution does it state that any court can overturn a law. As I understand the history on this, the Supreme Court actually gave itself this power in the 1803 decision of Marbury v. Madison. Thomas Jefferson was quite pissed off by this, as evident to his reaction on the ruling. Check out this link.
http://www.hoboken.k12.nj.us/hoboken/cmunoz/18th%20Century%20Documents/Thomas%20Jefferson%27s%20Reaction%20to%20Marbury%20v.%20Madison%20%281803%29.pdf
In Federalist #78, Hamilton explicitedly said that the Judiciary should not be able to act in a manner to rule on it's own power. Yet, it seems that is precisely what the court did in 1803.
While this idea for me seems more appealing than it would have been in the past, due to the 5-4 conservative majority on the court, some conservatives have been quite vocal about this. Recently, Newt Gingrich noted that Judicial Review could not be found in the Constitution. In the Roe v Wade decision, Justice Rehnquist, who wrote the dissent in that ruling said,
"The ... statute is struck down in toto...[m]y understanding of past practice is that a statute found ... to be invalid ...but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional"
Has the court turned into a kind of limited despotism? What say you?
let's start from scratch. Maybe next time things will be done right.
Especially when the prevailing winds are against you. This happens in Congress all the time. Like in the Senate, when the cloture rules to end filibustering are used to block the will of the majority, as happened in the Senate in '09. I agree the Court is too far to the right. But fixing the problem by ending judicial review is a cure worse than the disease itself. The principle of three co-equal branches of government is too valuable to jeopardize, especially in the era of The Imperial Presidency. I don't want an all-powerful executive whose actions are not subject to review, whether his name is Bush or Obama.
not too long ago the Dems had a supermajority in Congress and owned the White House, but there was still a conservative SC, assuming that Obama survives 2012, by the time the pendulum swings back and the GOP is in control again, we will most likely have a much more liberal court.
Balance, that's what it is all about, neither side is to be trusted with absolute power, and with three equal branches of government it is less likely (but not impossible) for one side to gain a complete and total mandate for their agenda.
The notion of picking 12 persons from the community to decide life or death issues who have no qualifications other than their age and residency is utterly absurd.
You would not make any other important decision this way - let's see, should we build a high speed rail across the country? Let's ask 12 members of the community. Should we raise St. Croix's property tax so the state will have enough money to pay its bills? Let's 12 members of the community.
Some juror invariably sleeps through the boring scientific testimony and others get hung up on irrelevant points like "if the glove doesn't fit, you must acquit."
Time to replace these bozos with professional jurors who can be trusted to make the right decision in capital cases.
Maybe it's dumb for me to argue this since I have no legal training, but I really like that everyone has the right to a trial by a jury of their peers. Replace them with professional jurors, and who who is going to pay for their profession? The state? Do you want the state to employ people to decide to put you behind bars instead of a third party who has no dog in the fight?
I'd rather have a 100 Casey Anthonys and OJ's go free than have a single innocent person executed or imprisoned. I have my doubts that you'd get fewer people falsely imprisoned with professional jurors.
"I'd rather have a 100 Casey Anthonys and OJ's go free than have a single innocent person executed or imprisoned"
I better check my temperature since I'm agreeing with you.
Professional Jurors would quickly become another corrupt good ole boys club working for the prosecution.
because I agree with him too, and for the exact reason he states.
I would rather have a 100 Casey Anthonys or OJ's go free, rather than have a single innocent convicted by a "professional" jury that has elevated itself to being above us, and no longer a jury of our peers.
If I am ever accused of a crime, I want to be judged by my peers, not a panel of people that have been elevated to a status that makes them my superiors and sole arbiters of justice, not my equals. We are guaranteed a to be judged by a jury of our peers. Anyone who prefers can always waive that right and cede that power to a judge.
But how are we going to find 12 land-raping, Capitalist-Running-Dog, chica-pounding whoremongers? lmao!
but the chances are that if you need them to be on a jury you had better have a damned good attorney on your side. Just sayin.
It is really an eye opening experience what those guys focus on in the jury room.
And have you ever actually listened to a judge's instructions on what the law is that they should apply? Lawyers spend three years in law school trying to understand that stuff - the jury is expected to understand that stuff on one hearing.
What you are missing when you say that you want to be judged by your peers is what they are judging you on - far too many times it is NOT the evidence and the law.
Nonetheless, I 'm going to respect your wishes and insure that you are tried for your many crimes by X Fean, TJ, Willy, Mr. Self Destruct, Southern Jezebel, Bennlanger, Mr. Nogood, Zinzavel, the Latex Queen, Tallslim, Zorf, and Atlanta Hunter.
But please make sure I get that bottle of Krug before your trial begins.
what a friggin line up.
warm up the firing squad!
Actually, lawyer's spend majority of their time in Law School learning all the technicalities available in our "law". They learn process, they learn the "rules", history of law, etc... So once in court, they display their grasp of the technicalities on both sides to try and impress jurors.
Jurors on the other hand are faced with a clear cut outlook.... Do I believe he/she is guilty or not and is the evidence believable, are the experts blowing smoke, in the end, does the defense have a legitimate description for reasonable doubt. Jurors don't need to be concerned with all the loopholes that lawyers obsess with.
given to them by the judge to decide the case correctly. We are not talking about the rules of procedure or other stuff lawyers must know.
If the defendant is being tried for a RICO violation, for example, the jury will be instructed that the defendant is liable only if he "operated an enterprise through a pattern racketeering activity."
Each one of the key words in that instruction is a term of art - you have to refer back to the definition of an "enterprise," the definition of a "pattern" and the definition of "racketeering activity" which in turn kicks you into the elements of two or more distinct crimes. It's like taking a graduate school exam to get the right answer.
So this "clear cut outlook" that you believe jurors are faced with is oftentimes not so clear at all.
I'm sure there are exceptions where a non seasoned judge may issue such a vague instruction. But, such vagueness will certainly open the door for a sustainable appeal. In the Casey case, the judge issued a very careful instruction explaining each and every term described in each of the counts. He even went so far as to describe the difference in each count, along with carefully worded guidance for how/when to keep or discard evidence/testimony.
The judge got it right and so did the jury.
No doubt, your fears about jury ignorance happen from time to time, even jury nulification sometimes, but it's better that way, than any other way I can imagine, especially in our world of over zealous prosecutors, embellished LE activity, and news media hype.
She is still only one person. lol
and actually T&D would probably vote to acquit, even though he is a race baiting, jew bashing racist, who would probably wear his hood throughout the trial. he is also a racing enthusiast who would more than likely acquit a fellow gambler. lol
In all seriousness though, the framers thought enough about this to be very careful to address it in the Bill of Rights. As bad as our system is, creating a "ruling class" that sits in judgement of other citizens is exactly what they were trying to prevent. One already has the "right" to be tried by a judge, how many ever exercise that right?
I am surprised that a man so concerned with "collateral damage" would not be concerned with the potential the collateral damage right here at home that would come with a group of jaded jurors that had "heard it all" judging their fellow citizens.
Zinaval and the Latex Queen? I am impressed, you had to reach back a ways to pull those two.
and wanted to convict the kid in a hurry so he wouldn't miss the game? That movie is not that off base from real life.
Think of it in terms of innocence and guilt. If you are innocent, wouldn't you rather have professional jurors try your case on the assumption they will pay strict attention to the facts and law? Bc you know that if the facts and law are followed, you will be acquitted.
If you are guilty, by all means go for the jurors who can be swayed by your attorney. Often jurors are making a decision based on their gut feeling; or maybe they are too passive to stand up to 11 guys who want to vote guilty like Henry Fonda did.
Zinaval was before my time but I have heard you refer to him. But who can forget the Latex Queen?
You're a lawyer, I am sure you have a better idea on how many people charged with a crime invoke their "right" to be tried by a judge instead of a jury. I suspect that number is a rather small one.
As for the Latex Queen, she was hilarious. Her "real" profile has been delisted. Apparently I wasn't the only one she pissed off. lol
Of course we do not have statistics on this since we never really know whether someone is innocent or not. But I would propose that the more complex your case is, you are better with the one than the 12.
As for me, my defenses are so subtle that I need Einstein and his ilk on the jury or I'm a goner.
I always suspected you did it for practice. lol
It's truly sad that a child is dead. It's sad also to learn of such a fucked up family ( Casey's ). But truth of the matter is that the prosecutors just didn't have the evidence to connect the dots and pin it on anyone. Sure, they presented a lot of speculation based in large part on some pretty big stretches, but sadly it just doesn't connect the girl to the murderer.
I say the jury got it right and a bunch of arrogant prosecutors got it wrong. They obvious thought they had a slam dunk by simply stirring up public outrage. If they had concentrated more on law and less on TV, maybe they would have gathered the necessary evidence.
In any case, the jurors aren't the problem and for the most part they get it right a lot more often than LE and lawyers.
quickly if need be. So in essence I disagree with you. I could be grossly incorrect but I think the laws that have the greatest effect on limiting liberty are enacted as local ordinances and state laws. After the state , county and municipal officials beat down your liberties congress puts the finishing touches on their demise by funding organizations to make it hard to resurrect your liberties. The Supreme court is where liberty has its last stand. The second amendment is a case in point.