Scotus pick

[Cali Coug]

Originally Posted by MikeWaters

So is it arbitrary? Meaning that SCOTUS at some point arbitrarily decides which civil liberties are incorporated?

Don't they have philosophies withe fancy names that makes it seem non-arbitrary?

No, not arbitrary. Arguably, all were incorporated through the 14th Amendment (legislative history seems to indicate that was one of the purposes of the 14th Amendment, although it isn't expressly stated in the 14th Amendment). The Court very quickly after ratification of the 14th Amendment began expressly incorporating provisions of the Bill of Rights against the states as those issues were litigated (they tend to do it provision by provision as the issue comes up rather than making a blanket ruling which covers all provisions of the Bill of Rights, because they only rule on the issues before them).

The First Amendment, though, has been a bit of an odd provision to incorporate given the fact that the religion clauses in particular were designed to be provisions of federalism (i.e., they were designed to leave the issue to state control rather than federal control- the clauses set parameters for the government but left state religious questions to the states). How do you incorporate something like that against a state? Thomas has used that very line of reasoning to argue that the religion clauses shouldn't have ever been incorporated against the states and that the states should be free to have a state religion if they want one. I may be the only person here who finds that interesting.

[BlueK]

Originally Posted by Cali Coug

The First Amendment, though, has been a bit of an odd provision to incorporate given the fact that the religion clauses in particular were designed to be provisions of federalism (i.e., they were designed to leave the issue to state control rather than federal control- the clauses set parameters for the government but left state religious questions to the states). How do you incorporate something like that against a state? Thomas has used that very line of reasoning to argue that the religion clauses shouldn't have ever been incorporated against the states and that the states should be free to have a state religion if they want one. I may be the only person here who finds that interesting.

So under Thomas' reasoning, the southern states could proclaim evangelical christianity to be the state religion and therefore afford it specific rights other religions wouldn't have? This tends to support my suspicion that the religious right in an ideal world would like more of a theocracy. I would think that should be more scary to republican mormons than it is.

[Cali Coug]

Originally Posted by BlueK

So under Thomas' reasoning, the southern states could proclaim evangelical christianity to be the state religion and therefore afford it specific rights other religions wouldn't have? This tends to support my suspicion that the religious right in an ideal world would like more of a theocracy. I would think that should be more scary to republican mormons than it is.

Precisely. They could also funnel state tax money to any particular religion, if they wanted. They could require office-seakers to be from a certain religious faith as well.

Many people don't know it, but this is precisely the framework the nation operated under well into the 19th century. Several states had an official religion years after the Bill of Rights went into effect (the last official religion was ended by Massachussetts, I believe, in the 1830s). Many more required that you be a Protestant, or more generically, a Christian, in order to seek political office, serve on a jury, etc., until close to the 1900s. The Supreme Court incorporated the Establishment Clause against states in the early 1900s which then made such requirements unconstitutional.

In part, this is why originalists crack me up. If their judicial philosophy was actually followed (and they don't really want that to happen, they just want to score easy political points by saying "do what the Framers would have wanted!"), they wouldn't be at all comfortable with the world they would create.

The right to bear arms? It would be gone in every state which decided its citizens had no right to bear arms. Establishment of religion? Permitted in every state which wants it (how would that go for Mormons?). Free speech? Sure, if the state is ok with it. Right to assemble? Maybe- ask the governor. Fortunately, no originalist is really a true originalist (Thomas perhaps excepted, but certainly not Scalia, and most definitely not Tex).

[Cali Coug]

Originally Posted by BlueK

So under Thomas' reasoning, the southern states could proclaim evangelical christianity to be the state religion and therefore afford it specific rights other religions wouldn't have? This tends to support my suspicion that the religious right in an ideal world would like more of a theocracy. I would think that should be more scary to republican mormons than it is.

Read Thomas' concurring opinion in Newdow, by the way. You will find it interesting, I think.

[Tex]

Originally Posted by BlueK

So under Thomas' reasoning, the southern states could proclaim evangelical christianity to be the state religion and therefore afford it specific rights other religions wouldn't have? This tends to support my suspicion that the religious right in an ideal world would like more of a theocracy. I would think that should be more scary to republican mormons than it is.

It also tends to support the idea the Founders had in mind when they drafted the Constitution. In fact, if memory serves (I could be wrong on this), there was some state support of religion that persisted beyond the ratification of the Constitution.

Personally, I prefer that we have no gov't support religion, whether at the federal or state level, as do (I'm sure) the vast majority of Americans. But Thomas' argument about whether it should be a question decided by the states is an interesting one. In modern American politics, it's almost as though the tenth amendment no longer exists.

[BlueK]

Originally Posted by Tex

It also tends to support the idea the Founders had in mind when they drafted the Constitution. In fact, if memory serves (I could be wrong on this), there was some state support of religion that persisted beyond the ratification of the Constitution.

Personally, I prefer that we have no gov't support religion, whether at the federal or state level, as do (I'm sure) the vast majority of Americans. But Thomas' argument about whether it should be a question decided by the states is an interesting one. In modern American politics, it's almost as though the tenth amendment no longer exists.

I believe the founders in general didn't like the idea of a state religion so they made it impossible at the federal level. It was just that they didn't believe they could impose that on the states, or that if they tried, they wouldn't be able to get the Constitution ratified.

[Venkman]

Originally Posted by MikeWaters

Axelrod, interviewed today, said that Obama prayed last night about his decision to choose Sotomayor.

I thought that was interesting.

I don't think many people here have a problem with Obama praying about his decisions, right?

I don't, though I find it interesting the notion of GWB praying about stuff threw the left into a tizzy.

[Venkman]

I have a problem with the whole empathy thing in a supreme court justice. Doesn't that go against the idea of that lady with the blindfold and the scales?

[BlueK]

Originally Posted by Venkman

I don't, though I find it interesting the notion of GWB praying about stuff threw the left into a tizzy.

I don't doubt GWB's sincerity and I respect that he is religious and makes it a part of his life. But a few things make me a little uncomfortable. He made no attempt to hide the fact he believed he was divinely called to be the president of the US or that pretty much everything he did came through the lens of his evangelical background. Obviously you can't reallly separate a person's core beliefs from how he performs his job, but I do find it the height of arrogance and hypocrisy for the christian right to freak out about Mitt Romney possibly being influenced by his LDS background and yet have no problem whatsoever with a president basing everything he does in his office on his personal religious perspective of the world. I think in GWB's case it affected how he interpreted what he had the authority to do. (If I feel God thinks it's ok, then there must be a way to find a legal justification for doing it) Mike Huckabee is scary to me because he says he would base what he does as president on the Bible. That makes him a great christian right candidate, I suppose. Hello, have we forgotten the Constitution?

[Tex]

Originally Posted by BlueK

I don't doubt GWB's sincerity and I respect that he is religious and makes it a part of his life. But a few things make me a little uncomfortable. He made no attempt to hide the fact he believed he was divinely called to be the president of the US or that pretty much everything he did came through the lens of his evangelical background.

I hate to say "nonsense" yet again to one of your points, BlueK, but it's too fitting. I don't think you can find any Bush statement that can be fairly construed to indicate he believed he was "divinely called" to be president in the sense you mean it.

Many if not most God-fearing presidents have expressed a humble recognition of their role as custodians of a sacred trust, and some give credit to God for helping them get there. But I'm not aware of any--including GWB--who espoused this king-like magisterial divinity, such that any action they took was de facto sanctioned by God.

Saying this is just so much leftist propaganda, and it really is nonsense.