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Post By
bd2999 
Moderator

Member Since: Sat May 17, 2008
In Reply To
The Avenger

Location: New Jersey
Member Since: Thu Dec 02, 2021
Subj: Re: Illiberal upstarts reinvent conservatism
Posted: Thu May 12, 2022 at 10:04:24 pm EDT (Viewed 69 times)
Reply Subj: Re: Illiberal upstarts reinvent conservatism
Posted: Thu May 12, 2022 at 05:21:03 pm EDT (Viewed 83 times)



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      The catholic church surprises me. Given the influence of the conservative evangelical movement within the US, I am surprised it is not based on that or more an abstract view of Christianity, being most view the US as being a nation founded on Christian principles.






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    When is a conspiracy theory not a conspiracy theory? When it's true.



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    To know what's really going on in the American judiciary, including and especially the Supreme Court, one has to become knowledgeable about the Federalist Society and, perhaps even more crucially, the Knights of Malta.



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      While I agree with your concern on the application of a theocratic based state it is hypothetically prevented by the First Amendment.



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    Unfortunately, no, it's not. All the First Amendment does, in this context, is prohibit the establishment of a state religion. This is easily circumvented. Simply legislate in accordance with your religion's moral theology, without explicitly referencing your religion. Don't say, "Catholicism opposes abortion." Say, instead, "Conservatism opposes abortion."


True enough, although it would prevent a Theocracy in the most absolute and technical terms, but in many respects in name only. Pending how the Courts would rule on its meaning. It is already being widdled down a fair bit from classical understanding.


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      I hate to break this next part to you but there is not a judge alive or who has lived that has taken the strict intention as written. Even the guys on the court now that claim to will modify definitions as needed. And that has been the case throughout US history.



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    I don't know why I keep receiving comments like, "I hate to break this next part to you," which seem, to me, to be disrespectful.


Quite so, I chose words very poorly. No disrespect was meant.


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    In this instance, I will simply reply that I know most judges won't restrict themselves in accordance with originalism. They won't restrict themselves at all. I am saying that I wish they would. My entire concern is the existence of an omnipotent and unassailable judiciary. Such a judiciary seems great when it agrees with your particular ethos. Comes a time when it agrees with your opponents, and suddenly its omnipotence and unassailability will seem like problems to you. Unfortunately, it will be too late to do anything about it.


I suppose in a perfect world. I just do not see the judiciary as ever being perfect anywhere. I do agree with what you are saying in general, although my thoughts are not it is not so much a debate based on what the law says but about how much one thinks politics, political thought and ideology shade the views of a law.

It seems like over the last however many decades we (of which I include myself) have become deluded with the idea of a judiciary that rises above it all where that probably never existed. It has always has been political.


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      The fact that there are unenumerated rights should also not be that controversial to you. Given the 14th Amendment and the 9th Amendment in particular.



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    Unenumerated rights of course exist. But what are they? We don't know - because they're unenumerated!


Yes, but my point is that they were considered important enough to include. Why would it have been bothered with then?


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    Suppose I say to you, "All married men have the right to demand sex from their wives, and punish non-compliance." You say, "No they don't!" I say, "Sure they do. It's unenumerated!"


It would seem more of a reach than most such rules that I know of so far. Particularly in the context of the rest of the document itself. Which is how I personally would view it. But that is of course seen through my ideology.

But they are in there and do not need to always be spelled out clearly.

It is a problem and makes the footing shakier for ideological readings, but it is what it is.


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      It is simply not always clear what was meant in certain views. And there are clearly different views on the matter. Consider the Establishment Clause alone. Conservative judges are happy enough to ignore it or break it down when it seems pretty clear that the reading indicates that state sponsored religion is not ok, but the language as it is does not inform us as to where the specific line is. And Courts have fought about it for ages.



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    Which is precisely why I want legislatures to legislate. Put it in writing.


Oh, I would love if legislatures did much of anything. Particularly at the federal level. That system is made not to work or to avoid progress unless it is in the face.

And often state governments have started down the path to regressivism. IMO.


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      The Constitution itself is also full of alot of material that does not count as such anymore. Militias are rarely used for instance so what does the Second Amendment mean?



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    The Framers wanted to make sure their states would not be disarmed by the federal government. An honest application of originalism would show that a lot of what's in the Constitution is there to protect state rights, not individual rights.


To a point, although there are a number of books that cover the topic in depth and it is not straight forward. This is highlighted by the fact that there were multiple versions of the amendment (and others) that were clearer but were rejected.

It may well have been about state's rights but how does that translate to modern times? Part of it talk about no restriction on the right and the other about a militia. Should we take that literally and translate to national guard only? Do people need to bring their own guns, like they did when they initially passed the amendment. Is it moot after a standing army is in place?

There is for sure nothing on a personal right to bare arms, that was a recent right or restrictions not being ok. Even judges around the time of the founding held that restrictions and such were ok.

To me, it is just a strangely worded Amendment. I would recommend the 2nd Amendment a History in particular. Not saying you are uninformed or anything, just saying I found it very interesting.


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    But see, here's the point: originalism is something that's amenable to debate. We can gather evidence for conflicting points of view and have it out on the intellectual arena. It isn't the arbitrary whims of omnipotent and unassailable judges.


I suppose, but somebody would need to make the call in the end. Whose evidence is more compelling and that person is not going to be perfect.

Hypothetically, it sounds good but I do not think it always works out how we may want it to.

I know many judges will quote historical texts when convenient and will not do so correctly as ruled by the academic field.


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    But I'm willing to entertain some other principle that could be used to tell judges to their faces, "You're wrong."



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    On another thread I proposed the following:



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    The Freedoms Amendment



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    The Supreme Court shall pass no new judgment that decreases or restricts the freedoms of individuals, and shall invalidate any new action of the federal or state legislature which decreases or restricts the freedoms of individuals. No individual shall be understood as having, nor be newly granted, the right or freedom to decrease or restrict the freedoms of any other individual on any grounds whatsoever, including religious.


I like the concept, but not sure I agree with it as it is. As is, hypothetically wouldn't it exempt someone from being sent to prison as the law they broke would be unconstitutional given it violates their freedom?


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      Sorry for the tangent. I agree with your general point that nobody should be ruled by anothers religion or really beliefs but I just think the law and Constitution are very vague in certain areas.



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    Which is why I want legislatures to legislate.


I think a couple threads down I was more in the camp of making Amendments easier to pass. I am fine with states passing laws. The issue comes in when the judiciary reviews them.

What is Constitutional or not is sometimes easy to figure and sometimes not and it often depends on what court you are in front of. It is one of the reason so many cases anymore go around trying to find the most conservative judge they can to make the broadest ruling possible to stop any action. At least the trend at the moment.


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        By the way, Roberts, Thomas, Alito, Kavanaugh, and Barrett are Catholic.



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      Which is fine, it should not matter. People can be whatever they want. I have more concerns with Roberts friendliness to business, Thomas's hostility towards any befinicial regulation, Alito being a partisan and Kavanaugh being apparently out for revenge in his approval hearings.



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    Unfortunately, the excessive influence of Catholic natural law theology on the United States judiciary is not, in my opinion, fine. It does matter.


It may well. Like I said initially I would need to check out the link provided in more detail etc.

I just am in the boat that I give folks on matters of religion the benefit of the doubt. I do not know how they practice or what they believe. I have known many Catholics for instance and most do not really follow the church that closely at all.

That is all I meant. It should not make a difference what the faith or lack of faith of a judge is. Their job should be the same. In a perfect world.






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