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2010/10/13 07:34:00
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
Pending 60 days to adhere to this new ruling and possible appeals, the US armed forces must now stop policies against gays and lesbians serving in the military.
By Mimi Hall, USA TODAY
WASHINGTON — A federal judge Tuesday ordered an immediate end to enforcement of the military's "don't ask, don't tell" ban on lesbians and gay men serving openly in the armed forces.
The court ruling is a "historic and courageous step in the right direction," says Alexander Nicholson of Servicemembers United, the nation's largest group of gay and lesbian troops and veterans.
What happens next, however, is unclear. Neither the Pentagon nor the Justice Department, which has 60 days to appeal, would comment.
Although President Obama says he opposes the 1993 law that set the military's policy on gays, he has ordered the Pentagon to study the effect a repeal would have on the armed forces, and the results of that study aren't due until December. The White House also says that Congress, not the courts, needs to repeal the law, but Senate Republicans have blocked those efforts.
The law forbids gay servicemembers from revealing their sexual orientation, and it requires their superiors not to ask unless they believe the law is being broken. Last year, according to Bloomberg News, the military discharged 259 men and 169 women under the law. Nicholson's group says 14,000 servicemembers have been discharged under the policy since it took effect.
"The president will continue to work ... to change the law that he believes is fundamentally unfair," White House spokesman Robert Gibbs said.
Yale law professor William Eskridge said that with her ruling, U.S. District Judge Virginia Phillips "is stepping in to break a deadlock that the political process was unable to resolve. The ball is in the Department of Justice's court now."
Phillips, in Riverside, Calif., ruled that enforcement of the law she had previously declared unconstitutional must be halted immediately because it "irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates a host of rights: due process, freedom of speech and the right to petition the government for redress.
Phillips was nominated to the bench by President Clinton in 1999.
Conservative groups denounced the ruling. Tony Perkins, president of the Family Research Council, accused Phillips of "using the military to advance a liberal social agenda."
At the Justice Department, spokeswoman Tracy Schmaler declined to comment because officials are reviewing the ruling. Pentagon spokeswoman Cynthia O. Smith also declined to comment because the ruling had just been issued.
The case was brought in 2004 by the gay-rights group Log Cabin Republicans. Dan Woods, a lawyer for the group, said Phillips' ruling "reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country."
The Obama administration should let the judge's ruling stand and "stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence," said Joe Solmonese, of the Human Rights Campaign, which promotes gay rights.
In June 2009, the U.S. Supreme Court turned down a challenge to the policy brought by former Army Capt. James Pietrangelo, who was dismissed under the rule. A federal appeals court in Boston earlier threw out a lawsuit filed by Pietrangelo and 11 other veterans.
There's too much legislation from the bench these days.
If the policy is going to end, it needs to happen through the correct channels. It needs to happen based on legislation in Congress, and based on the input of the military.
This is not "courageous" it's "foolish." I understand that this judge wants gays in the military. Wonderful. Don't undermine our entire legal system and process of judicial review in order to get it.
It's fundamentally undemocratic to circumvent the legislative process by judicial fiat.
This is a democratic republic. If the people want an end to don't-ask-don't-tell, then they will support politicans who vote to end it. If they don't, then they won't.
There's a reason Congress won't vote on it... It's cause they know the majority doesn't want it.
And what do you do in a democracy, when the majority doesn't want it? You don't do it...
You do understand that the Judicial branch is apart of the government, right? It isn't legislating from the bench, it is the concept of "checks and balances" that seemed somewhat important to the guys who formulated it. After laws are passed they have to stand up to scrutiny as to whether or not they are viable.
Amidst the mists and coldest frosts he thrusts his fists against the posts and still insists he sees the ghosts.
2010/10/13 08:54:04
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
At least your camouflage patterns will now officially be fabulous
Though having read Phryxis' comments, as I don't know how the US law making gig works, it would appear that this is being forced through the wrong way (no pun intended), and may be better going through whatever the correct legal channels.
Having said that, you don't need to have your elected officials do everything (after all, they all seem to be bought and paid for by big business anyway). If judges have the power to do these things, it may be with good reason - to correct the wrongs and errors of those elected officials.
It isn't legislating from the bench, it is the concept of "checks and balances" that seemed somewhat important to the guys who formulated it.
And you realize that those "guys" were not the authors of the Constitution, but instead judges, legislating from the bench, that they had the power to legislate from the bench...
After laws are passed they have to stand up to scrutiny as to whether or not they are viable.
Certainly... And DADT was created in 1993. It took 17 years to get around to scrutinizing it?
No. It took 17 years for the political winds to shift enough that there was sufficient momentum to start attacking it.
Now, don't get me wrong, I'm not suggesting that there's some emperical metric as to what's "proper judicial review" and what's "legislating from the bench." It ends up being a pretty subjective call.
But, come on... If it's REALLY unConstitutional, how come it hasn't been found as such for the past 17 years?
And, even if it is, why not let the process take its course? Congress is working on getting a bill passed. If it's the will of the people, it will get done.
Overturning legislation via judicial review is BAD for the country and for the process. When it happens it suggests that our lawmakers are not capable of writing valid laws. When it happens it fundamentally undermines the will of the people, and the democratic process. It may, at times, be necessary, but it should only be used when absolutely necessary.
In this case it is not necessary.
It's not necessary because there are actions in process to deal with it correctly.
It's not necessary because, for 17 years, it hasn't been necessary. In a precedent based legal system, that's not a trivial matter.
What makes it even worse, is that the more judicial review is abused in this way, the more tolerant we will become with it, the more our democracy decays, and becomes a dictatorship of 7 judges.
Don't forget, this thing can go both ways. One more conservative judge in there, somebody appeals their way up to the SCOTUS, and Roe v Wade is gone, or Obama's Healthcare plan is scuttled, or whatever else. That would be equally awful. Let Congress write the laws.
I don't know how the US law making gig works
Marbury vs. Madison is the key.
Basically what happens is lawmakers write laws, and they go into effect. Then, if somebody thinks they won't pass review, they bring a case against the US (ie. Log Cabin Republicans v. United States of America), and then they either get the ruling they want, or keep appealing it up to the Supreme Court. If they don't get the ruling they want there, it's pretty much done. Of course, they might find some other legal basis, and try it all again, as the courts are expected to find for or against the argument presented them, so other arguments might be "better."
Also, the lawyers representing the US can appeal as well, though one wonders if they will in this case, since the ruling actually matches the agenda of the President.
But, come on... If it's REALLY unConstitutional, how come it hasn't been found as such for the past 17 years?
Indeed. Same goes for those uppity blacks: If it took a hundred years for Seperate But Equal to be declared unconstitutional, then it's probably just political bs.
2010/10/13 10:09:19
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
Thing is, DADT sounded like a pretty reasonable thing 17 years ago. In practice, its turned out 'don't tell' means don't get seen in any homosexual situation, no matter how private the situation and how far it is from your duties as a soldier.
So I can see how a law that might appear to not infringe anyone's rights when written may come to be seen to be seen as infringing on people's rights when used in practice.
While I'm not a constitutional lawyer, I know the Supreme Court has accepted that the army can do things regular employers can't do... so I'm not really sure where this stands in terms of precedent and stuff.
Automatically Appended Next Post:
Phryxis wrote:There's a reason Congress won't vote on it... It's cause they know the majority doesn't want it.
Nah, opposition to DADT polls at around 75%, it's not a popular thing. It's just that the Democrats need something like 90% support and someone holding a gun to their heads before they'll even begin to address an issue.
Don't forget, this thing can go both ways. One more conservative judge in there, somebody appeals their way up to the SCOTUS, and Roe v Wade is gone, or Obama's Healthcare plan is scuttled, or whatever else. That would be equally awful. Let Congress write the laws.
Weird example, there... Roe vs Wade was legislating from the bench, itself. To be honest, even though I support the right to abortion, I can't see how any right to privacy can be found that would make abortion a constitutional right.
This message was edited 1 time. Last update was at 2010/10/13 10:31:11
“We may observe that the government in a civilized country is much more expensive than in a barbarous one; and when we say that one government is more expensive than another, it is the same as if we said that that one country is farther advanced in improvement than another. To say that the government is expensive and the people not oppressed is to say that the people are rich.”
Adam Smith, who must have been some kind of leftie or something.
2010/10/13 12:46:16
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
The basic point is that homophobia was much stronger 50 years ago, and still strong 20 years ago. And now it has faded more.
One reason it has faded is because the relaxation of anti-homosexual laws has allowed homosexuals to come out of the closet legally. Society has got used to the fact they exist and don't eat babies, corrupt the youth, and so on. Only a fairly small number of homophobes are still shocked.
So it makes sense that the DADT policy could be relaxed nowadays.
On a broader topic, laws often have to be interpreted by the courts. That is why we have case law.
Kilkrazy wrote:The basic point is that homophobia was much stronger 50 years ago, and still strong 20 years ago. And now it has faded more.
You do have to be careful still, as we have people who do not like people of homosexual orientation and would go to great lengths to eradicate/eliminate it.
Just look my great state's Tea Party supported Republican canidate Paladino:
Video is kinda shaky but the message is that people still have problems with gays and lesbians.
In the context of the military, ending "Don't Ask, Don't Tell" can be dangerous from a saftey standpoint for those servicemen and women who do want to be known as being homosexual. Just like those with deep religious convictions, people with deep homophobic hatred will go out of their way to hurt those servicepeople in someway. No matter how few those homophobes are who act, it would take just one incident, one tragic death to cause an uproar.
We could have to enact policies to protect those servicemen and women if that becomes the case against homophobic attacks. I'm not a military man in any degree, so unfortunately I could be able to tell you how I would feel having military members attacking one another just from sexual orientation, or how one would feel if the government had to scrutinize you, especially if we assume homophobes are far right fundamentalists or Christians, and you somehow get grouped together in that category as Muslims get identified as such with radical Muslims.
It is a slippery slope either way. Do we allow "Don't Ask, Don't Tell" because we are a better, freedom loving democracy or continue it because we are the facade of one?
But, come on... If it's REALLY unConstitutional, how come it hasn't been found as such for the past 17 years?
Indeed. Same goes for those uppity blacks: If it took a hundred years for Seperate But Equal to be declared unconstitutional, then it's probably just political bs.
People who don't like gays still won't like gays, but at least we're getting some public recognition from someone besides the media and it might becomea little more transparent if anti-homosexual actions are occurring.
Worship me.
2010/10/13 13:55:16
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
Kilkrazy wrote:The basic point is that homophobia was much stronger 50 years ago, and still strong 20 years ago. And now it has faded more.
You do have to be careful still, as we have people who do not like people of homosexual orientation and would go to great lengths to eradicate/eliminate it.
Yes, it probably will never be completely eradicated. However the danger that some fruit loop might frag a gay soldier should not be allowed to prevent gay people from enlisting as soldiers.
The acceptance of homosexuality is widespread in society as a whole, and society should not allow itself to be held hostage by a small number of people with extreme views.
Phryxis wrote:There's too much legislation from the bench these days.
If the policy is going to end, it needs to happen through the correct channels. It needs to happen based on legislation in Congress, and based on the input of the military.
This is not "courageous" it's "foolish." I understand that this judge wants gays in the military. Wonderful. Don't undermine our entire legal system and process of judicial review in order to get it.
It's fundamentally undemocratic to circumvent the legislative process by judicial fiat.
This is a democratic republic. If the people want an end to don't-ask-don't-tell, then they will support politicans who vote to end it. If they don't, then they won't.
There's a reason Congress won't vote on it... It's cause they know the majority doesn't want it.
And what do you do in a democracy, when the majority doesn't want it? You don't do it...
Agreed. Seprating the issue from the action, the court royally overstepped its bounds. But thats the problem isn't it. We're barely ruled by politicians any more. Any meaningful issue is decided by someone who was appointed by fiat.
Automatically Appended Next Post:
Kilkrazy wrote:The basic point is that homophobia was much stronger 50 years ago, and still strong 20 years ago. And now it has faded more.
One reason it has faded is because the relaxation of anti-homosexual laws has allowed homosexuals to come out of the closet legally. Society has got used to the fact they exist and don't eat babies, corrupt the youth, and so on. Only a fairly small number of homophobes are still shocked.
So it makes sense that the DADT policy could be relaxed nowadays.
On a broader topic, laws often have to be interpreted by the courts. That is why we have case law.
it Federal courts traditionally don't have this kind of jurisdiction. Its an executive matter, and it even has its own courts.
You want to change the rule, then great. But that thats for the President of the United States to decide, not some nattering nabob poltiical appointee from years ago who aint worth spit.
This message was edited 2 times. Last update was at 2010/10/13 14:02:54
-"Wait a minute.....who is that Frazz is talking to in the gallery? Hmmm something is going on here.....Oh.... it seems there is some dispute over video taping of some sort......Frazz is really upset now..........wait a minute......whats he go there.......is it? Can it be?....Frazz has just unleashed his hidden weiner dog from his mini bag, while quoting shakespeares "Let slip the dogs the war!!" GG
-"Don't mind Frazzled. He's just Dakka's crazy old dude locked in the attic. He's harmless. Mostly."
-TBone the Magnificent 1999-2014, Long Live the King!
2010/10/13 15:16:13
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
As I understood it, the US has the same core system of law as the UK, which relies on precedents set in previous cases (the obiter dicta, if I remember it correctly.)
It has been argued in the UK that judges should not have the amount of influence via the Obiter Dicta that in practice they do. So many laws are badly drafted by Parliament, though, that they need to be interpreted more than should really happen.
If the US has the same problem, it would not surprise me.
if you are simply saying that the standing law in this specific case is already clear, that is why I said "On a broader topic", in order to separate that comment from the specifics of the DADT law.
All members of the Supreme Court are political appointees. Do they count as Nattering Nabobs?
Kilkrazy wrote:Not sure where you're coming from there.
As I understood it, the US has the same core system of law as the UK, which relies on precedents set in previous cases (the obiter dicta, if I remember it correctly.)
It has been argued in the UK that judges should not have the amount of influence via the Obiter Dicta that in practice they do. So many laws are badly drafted by Parliament, though, that they need to be interpreted more than should really happen.
If the US has the same problem, it would not surprise me.
if you are simply saying that the standing law in this specific case is already clear, that is why I said "On a broader topic", in order to separate that comment from the specifics of the DADT law.
All members of the Supreme Court are political appointees. Do they count as Nattering Nabobs?
I am saying federal courts haven't historically tried to interfere with the military, through either deference or absolute lack of jurisdiction.
-"Wait a minute.....who is that Frazz is talking to in the gallery? Hmmm something is going on here.....Oh.... it seems there is some dispute over video taping of some sort......Frazz is really upset now..........wait a minute......whats he go there.......is it? Can it be?....Frazz has just unleashed his hidden weiner dog from his mini bag, while quoting shakespeares "Let slip the dogs the war!!" GG
-"Don't mind Frazzled. He's just Dakka's crazy old dude locked in the attic. He's harmless. Mostly."
-TBone the Magnificent 1999-2014, Long Live the King!
2010/10/13 15:57:20
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
I really don't think this was a good idea. Regardless of my feelings on the issue, this is not going to go over well with the rank-and-file of the US military IMHO.
Oh look, the Log Cabin Republicans were the ones that brought the suit? I wonder if people that were comparing them to Concentration Camp Capos are willing to admit how ignorant they were being when they made that particular statement?
I doubt it.
Drink deeply and lustily from the foamy draught of evil.
W: 1.756 Quadrillion L: 0 D: 2
Haters gon' hate.
2010/10/13 16:02:55
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
I always have the feeling DADT was a decent idea to avoid discrimination in the armed forces, and that somehow it got twisted around and did the opposite :-S
Meh. It was bound to happen sooner or later. Surprise surprise. Everyone put on your shocked faces! *gasp*
The method may be wrong. I'm not sure a civilian court has any jurisdiction over military procedure. Of course we should also consider the possibility that, the military doesn't give a damn and will just ignore the ruling. They've done it before. High ranking officers are a pretty conservative bunch and the guys who run DADT are mostly high ranking officers.
It's gonna come down bureaucratic BS. Government does it all the time and the world hasn't ended yet. Let's move on to the next crisis. Children and how them getting scrapped knees on playgrounds means we must drop everything and ban recess!
If it took a hundred years for Seperate But Equal to be declared unconstitutional, then it's probably just political bs.
Civil rights generally went through the legislative process. I'm not saying that society's values don't shift, because clearly they do, and clearly the law needs to shift along with them.
The thing is, we have a body in charge of managing that shift, and they're called Congress.
The judicial branch is there to interpret the laws that Congress writes, and ONLY in the most critical situations, to overturn those laws.
There is such deadlock in Congress these days, leadership is resorting to judicial trickery to get laws changed. This is not "the system" this is "the system failing." It's ridiculous to make appeals to the "system of checks and balances," as if this is the correct and optimal function of our system. It's not.
Legislating from the bench is code language for "my side didn't win the court case".
And this is code for "I'm being flippant because I don't have a real response, and didn't really read what was said when it started proving me wrong and making me feel icky."
I made it clear that it works both ways. I'm also not sure I ever stated my "side" on this issue, but thanks for presuming I have one in the way that most directly questions my integrity.
Nah, opposition to DADT polls at around 75%, it's not a popular thing.
Meh, I think some of it is the polling methodology. I would never underestimate the homophobia of the average American.
If you say "should gays be allowed to [do something that sounds like personal freedom] people will say "yes, of course, freedom is good!"
But if you say "should the civillian government be able to force the military to change its policy on gay service members," people will say, "oh, no, forcing people is bad, especially our honorable military!"
But, regardless, I didn't know the polling was so positive for repeal. It does make one wonder why the Dems are so scared to press the issue.
Weird example, there... Roe vs Wade was legislating from the bench, itself. To be honest, even though I support the right to abortion, I can't see how any right to privacy can be found that would make abortion a constitutional right.
Well, that's my point, right? Not meant to be weird, meant to show that fundamental choices our society has made can come and go at the stroke of a gavel. That's fundamentally undemocratic, and contrary to the core principles of our system. We should be having these things go through debate, in public, on the floor of the House and Senate. We should have elected officials putting their votes on these issues.
Instead we get 9 judges (for some reason I said 7 last post) running the country.
It's also worth noting that, were RoevWade to be overturned, you'd have two different courts saying two different things... Meaning that they're not really dispassionate, objective arbiters of language and precedent, but basically just people with opinions. And that brings up ANOTHER reason that legislation from the bench is wrong: the people doing it aren't REALLY any smarter than the people writing the laws. Since it's all basically opinion in the end anyway, why not give the choice to people who we VOTED for?
Hell, we already vote for people who vote for people who vote for us. Are we going to add ANOTHER layer of abstraction to that system, and dilute the democratic process even more?
Let's not.
On a broader topic, laws often have to be interpreted by the courts. That is why we have case law.
Interpret does not equal overturn. But, yes, we've even had courts overturning laws since Marbury vs Madison. It's just not good for the process, and not the way it's "supposed to work."
As I understood it, the US has the same core system of law as the UK, which relies on precedents set in previous cases (the obiter dicta, if I remember it correctly.)
I was under the impression that the UK legal system was NOT precedent based, but instead each judgement was more or less on its own as far as interpretation?
This message was edited 2 times. Last update was at 2010/10/13 16:51:39
UK (I should say English) and US law are much more similar to each other than English is to French, because US law was based on the existing English law.
There are bits of contract law based on cases as old as the 17th century, and they still stand as the basis of US contract law too.
UK (I should say English) and US law are much more similar to each other than English is to French, because US law was based on the existing English law.
There are bits of contract law based on cases as old as the 17th century, and they still stand as the basis of US contract law too.
older than that actually...
Yes the UK concept of stare decisis is where this mess comes from.
Napoleonic code is a good bit different.
Vive Napoleon! (mmm dessert...)
-"Wait a minute.....who is that Frazz is talking to in the gallery? Hmmm something is going on here.....Oh.... it seems there is some dispute over video taping of some sort......Frazz is really upset now..........wait a minute......whats he go there.......is it? Can it be?....Frazz has just unleashed his hidden weiner dog from his mini bag, while quoting shakespeares "Let slip the dogs the war!!" GG
-"Don't mind Frazzled. He's just Dakka's crazy old dude locked in the attic. He's harmless. Mostly."
-TBone the Magnificent 1999-2014, Long Live the King!
2010/10/13 17:48:56
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
sebster wrote:Thing is, DADT sounded like a pretty reasonable thing 17 years ago. In practice, its turned out 'don't tell' means don't get seen in any homosexual situation, no matter how private the situation and how far it is from your duties as a soldier.
So I can see how a law that might appear to not infringe anyone's rights when written may come to be seen to be seen as infringing on people's rights when used in practice.
While I'm not a constitutional lawyer, I know the Supreme Court has accepted that the army can do things regular employers can't do... so I'm not really sure where this stands in terms of precedent and stuff.
I think everyone is a little confused as to what DADT entails. You can be seen in any number of homosexual situations, from gay bars to pride parades, and you can even possess gay pornography, but you have to demonstrate a propensity for homosexual conduct before the military can do anything about it. So, basically unless you get caught performing homosexual acts or attempt to marry someone of the same sex the military can't put you out for being gay. I'm talking about definite proof (i.e. pictures, multiple eyewitnesses etc.) before the military can or will do anything about it.
2010/10/13 17:58:48
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
I don't know if that actually makes it any better. To balance things back out we should have a rule about people in the military not being able to declare that they're straight for 17 years. It would only be fair
Worship me.
2010/10/13 18:06:08
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
-"Wait a minute.....who is that Frazz is talking to in the gallery? Hmmm something is going on here.....Oh.... it seems there is some dispute over video taping of some sort......Frazz is really upset now..........wait a minute......whats he go there.......is it? Can it be?....Frazz has just unleashed his hidden weiner dog from his mini bag, while quoting shakespeares "Let slip the dogs the war!!" GG
-"Don't mind Frazzled. He's just Dakka's crazy old dude locked in the attic. He's harmless. Mostly."
-TBone the Magnificent 1999-2014, Long Live the King!
2010/10/13 18:15:51
Subject: Re:"Don't Ask, Don't Tell" Policy Ends Via Court Order
IAmTheWalrus wrote:I think everyone is a little confused as to what DADT entails. You can be seen in any number of homosexual situations, from gay bars to pride parades, and you can even possess gay pornography, but you have to demonstrate a propensity for homosexual conduct before the military can do anything about it. So, basically unless you get caught performing homosexual acts or attempt to marry someone of the same sex the military can't put you out for being gay. I'm talking about definite proof (i.e. pictures, multiple eyewitnesses etc.) before the military can or will do anything about it.
In theory it is supposed to work that way but in reality it doesn't work like that at all, and that is part of the problem.
I'm sure this will be appealed, as it should, because something this important needs to go through the whole process to have any legitimacy.
Amidst the mists and coldest frosts he thrusts his fists against the posts and still insists he sees the ghosts.
2010/10/13 18:20:56
Subject: Re:"Don't Ask, Don't Tell" Policy Ends Via Court Order
IAmTheWalrus wrote:I think everyone is a little confused as to what DADT entails. You can be seen in any number of homosexual situations, from gay bars to pride parades, and you can even possess gay pornography, but you have to demonstrate a propensity for homosexual conduct before the military can do anything about it. So, basically unless you get caught performing homosexual acts or attempt to marry someone of the same sex the military can't put you out for being gay. I'm talking about definite proof (i.e. pictures, multiple eyewitnesses etc.) before the military can or will do anything about it.
In theory it is supposed to work that way but in reality it doesn't work like that at all, and that is part of the problem.
I'm sure this will be appealed, as it should, because something this important needs to go through the whole process to have any legitimacy.
From personal experience the practice of DADT is even more lenient than the letter of the law, but that's just what I've seen in the places I've been. I'm sure other units dealt with things differently.
2010/10/13 20:12:58
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
Phryxis wrote:But, come on... If it's REALLY unConstitutional, how come it hasn't been found as such for the past 17 years?
The DC gun ban hung around for twice as long, and it was a clear and obvious violation.
And, even if it is, why not let the process take its course? Congress is working on getting a bill passed. If it's the will of the people, it will get done.
Overturning legislation via judicial review is BAD for the country and for the process. When it happens it suggests that our lawmakers are not capable of writing valid laws.
Overturning unconstitutional legislation is good for the country and the process. If lawmakers fail to write valid laws, it's their bad laws that are responsible for the suggestion that they cannot write valid laws, not the people who say 'that's not valid'.
When it happens it fundamentally undermines the will of the people, and the democratic process. It may, at times, be necessary, but it should only be used when absolutely necessary... It's not necessary because, for 17 years, it hasn't been necessary.
Sounds like a catch-22 to me - if they wait to see if congress resolves it and/or if lower courts deal with it, that takes time. If they take time, then you argue 'for X time, it hasn't been necessary, therefore it's not necessary now'.
2010/10/13 21:09:24
Subject: "Don't Ask, Don't Tell" Policy Ends Via Court Order
We had rice pudding with jam and chocolate chips at the works canteen today.
Where do you work? It says London (but your Nat'l tag says Japan), and then you have an abbreviation that says Gbr., which using the powers of logical deduction you may also live in the Great Barrier Reef, or Gibraltar.
In Soho in central London, five minutes walk from the Plaza, Oxford Street, GW.
The reason my tag says Japan is that I have a house in Japan and often visit there. For some reason, the auto-detect feature often doesn't correctly detect the countries I visit, and the "by hand" change doesn't work for me. (No idea why.)
The last time I visited Japan I asked Legoburner to make my flag Japan and I can't be bothered to ask him to change it by hand all the time. (I was trying to collect as many flags as possible, for instance I went to Sweden last year and may go to Spain this year.)
It used to swap between the UK and US depending on whether I was logging on from home or work.
it Federal courts traditionally don't have this kind of jurisdiction. Its an executive matter, and it even has its own courts.
