I got a letter from an old friend

[Slut_boy]

You gotta love this technology. A friend of mine wrote me this morning from the US. He lives in Atlanta. I thought that I would post the letter because some of you may have comments. Here it is:



Hi

I don't know if you have been following the Florida vote at all, it has brought up some interesting legalities if you would. The latest move by the Florida Supreme court to overturn the decision of the secretary of state, and in so doing, usurp the powers vested in her, has made me realise that people have lost their personal accountability in this day and age.

It is clearly written in the legislation that the voter/elector has the responsibility to cast a vote in a reasonable manner, commensurate with the occasion. All counties and states are subject to machine votes, the rules
of which are clearly laid out before the game so to speak. It seems that the democrats have managed to take the personal accountability away from the voter, and have turned them into victims. Such is the liberal mantra in
this country that if you make a mistake on a ballot (normally thrown out), you have the courts(democratic judges)decide after the fact that you should not be disenfranchised, and that your vote should count. Now you have canvassing committees, only in three heavily democratic counties deciding what your intention was!. It is a deliberate attempt by the Gore people to steal the election, they have said they are sure they can "find" enough votes. To go as far as to obstruct the rule of law as legislated by the state to further your personal aims is dirty to say the least. So much for the greatest nation on earth!. I don't really like either party much, but this takes the cake, and its far from over. What are your thoughts?. Hope you are well, love to Kim.

T


What do you think?
______

[Edited by Slut_boy on 11-24-2000 at 02:31 AM]

 

[Weird Harold]

I think your friend is probably a republican.

On a more serious note, I think there is a lot of rhetoric about how the "court exceeded it's authority" and the like. Mostly by people who haven't taken the time to go to CNN.COM and download the adobe acrobat reader (.pdf) version of the court's opinion.

I couldn't understand how they could make such a determination, so I did download the file. Once I read it, I not only understand how, but why they made the decision. I'm not sure I would have made the same decision, but I do agree with their logic in reaching it.

I'd really like to hear the opinion of you and the other lawyers on the decision. Specifically, what grounds could the Bush camp have to appeal to the US supreme court?

 

[Deborah]

So I flipped on CNN when I woke up this morning and I hear Bush Team has filed petitions with the U.S. Supreme Court to prevent hand counts from being included, stop hand counts in those 3 counties, validate military ballots with no postmarks, etc.

I'd be interested in how some of you U.S. Supreme Court "experts" see this shaking out, specifically how each justice is likely to swing.

I dunno but seems to me off the top of my head the best argument is that the FL Supreme Court decision was unconstitutional in that it usurped the powers of the legislative and executive branches. Should be interesting.

 

[Expertise]

If this isn't a constitutional train wreck waiting to happen it will certainly do until the real thing comes along.

Rutherford B Hayes a nation turns its lonely eyes to you woo woo woo.

 

[Oliver Clozoff]

I'd be interested in how some of you U.S. Supreme Court "experts" see this shaking out, specifically how each justice is likely to swing... seems to me off the top of my head the best argument is that the FL Supreme Court decision was unconstitutional in that it usurped the powers of the legislative and executive branches.

To me, it definitely doesn't look good for Bush's chances in the Supreme Court. From what I've read, the Court has been reluctant to overturn state court decisions concerning state elections. What's more, the conservative justices who would be most inclined to favor Bush (Chief Justice Rehnquist and Justices Thomas and Scalia) are the same justices that typically take strong states' rights positions.

Conversely, the justices Bush would rely on to practice their usual judicial activism and overturn a state election are the more liberal justices who would be less inclined to favor Bush. So GWB seems to have at least a couple of strikes against him going in.

I thought that maybe this whole thing would be over on Sunday when the hand recounts are due in, but the Gore camp is now declaring that they'll contest the election if Gore loses.

We're in for a looooong fight.

 

[Slut_boy]

Why didn't someone fucking tell me that I had left the names on the letter? *turns to look at Deborah who once proclaimed to be my keeper* I am sorry if that made anyone uncomfortable.

I think that the reply has to be that the state ought not to be allowed to infringe upon the rights of its citizens. It needs to maintain a clear seperation of powers. That is why I have a problem with the Supreme Court ordering government to provide (for example) resources to people. The judges in a court room are not elected by the people, the government is. How then can judges decide how public funds must be spent? That is for the public to decide via the government that they have elected to power. The Court is in my opinion acting beyond its powers.

 

[Deborah]

Hey Slut_boy, I didn't think you cared (about your name) or I would have watched your backside (and given you a poke or two).

So now I hear on the news driving home from work the U.S. Supreme Court is going to get involved. And the FL legislature wants to say their piece.

Any predictions? Woe is the FL Supreme Court me thinks, as in slapped silly.

 

[Unclebill]

I think that the reply has to be that the state ought not to be allowed to infringe upon the rights of its citizens. It needs to maintain a clear seperation of powers. That is why I have a problem with the Supreme Court ordering government to provide (for example) resources to people. The judges in a court room are not elected by the people, the government is. How then can judges decide how public funds must be spent? That is for the public to decide via the government that they have elected to power. The Court is in my opinion acting beyond its powers.

Have to agree with you on this one. Your point is well taken. Also, the Florida Supreme Court took action without a case before it on the decision it rendered. That in and of itself constitutes "judicial activism", i. e., the judiciary setting aside existing law and substituting its will for law.

In any case where a court sets aside a law for any reason other then the law is invalid, e. g., it contradicts existing higher law or is clearly discriminatory or irrational, the situation is accurately defined as "judicial activism". This seems to be a very useful tool which is a particular favorite of the Democratic politician as a means of evading Constitutional restrictions.

But, be adivised, in some locations, judges are elected not appointed. How does that affect you argument? In these jurisdictions, may judges then decree allocation of public funds?

And this all comes back to our earlier discussion regarding the difference between the government and the state. I finally decided we reached an impasse there because you cannot show me evidence that clearly and absolutely makes these two entities separate and independent.

 

[Slut_boy]

*laughs at Bill* I am not going to dig up an old disagreement, especially not now that you and I have finally agreed on something. Your question on the 'elected judges' is interesting, but I am afraid that I don't really know enough about the process. I do want to do some reading though - I'll get back to you Bill. I am reading quite an interesting book at the moment called "Judging the judges". It's all about the accountability of the bench in upholding immoral laws.

It is kinda related to your reference to "higher law" and mine to "seperation of powers". The argument made by positivists is that law should be made by the law-makers and that judges should uphold the law. Naturalists argue that judges can not and should not uphold unjust laws. Now that's no longer a problem in SA because we now have a 6 year old Constitution (its also not a problem for you in the US). The argument of the positivists failed at Nuremburg. The question is whether it ought to fail in SA too and whether the old Apartheid judges ought to be accountable for their role in perpetuating an unjust and abhorently immoral regime.

I am a naturalist at heart, but doesn't the seperation of powers get violated again where there isn't a Constitution. In SA there wasn't a Bill of Rights whilst in Germany there was (the Weimar Constitution). So the position is slightly different.

What do you think?

 

[Unclebill]

originally posted by Slut_boy
… but doesn't the seperation of powers get violated again where there isn't a Constitution …

Unless there is a definitive structure of the government, there is no separation of powers which should constitute the checks and balances for which the Constitution of the United States was constructed. Thus without some sort of definitive structure there is no possibility of violating that separation which does not exist.

The U. S. Constitution defined the specific functions and powers of each branch of government and ascribed to each certain functions. What you see more and more today is courts taking the initiative via judges with a political agenda.

As an example, the Florida Supreme Court without a related case before it issued its declaration to the Secretary of State to NOT comply with valid existing law regarding the election accounting and validation. The court usurped the authority of that office without cause or legitimate authority.

This seems to have become a favorite tactic of those whose desire is to circumvent the Constitution and the limitations it placed on government. They like to use a catchy forward thinking phrase like Living or Dynamic Document as a way of obviating those restrictions. The thrust of their effort being to reinterpret the Constitution and explain to us that this isn't really what the Founding Fathers meant when they wrote it. Rather, these enlightened few are going to indoctrinate us on the true meaning intended by people who have been dead for two hundred years and aren't likely to contradict them.

Much like the Algore chronies in south Florida want to interpret the voter's intentions by counting dimpled, hanging and pregnant chad to subvert the election, these people want to reinterpret and thus subvert the Constitution. The only true way to interpret the voter's intent is to ask the voter. Now how do you do that in a system of anonymous (secret) ballot? The only way is to record the ballot as marked, not allow some political hack with a mission to have a specific candidate in office manipulate the ballots until the desired result is achieved.

To put this idea of a Living or Dynamic Document into a perspective that's readily understandable, how would you like to sit in a poker game with living rules, i. e., the house changes the rules at will. For example, when the dealer holds a straight, it beats a full house. But when you draw a straight it doesn't. That's what it means to have living rules or dynamic rules.

 

[Unclebill]

Prediction or Wishful Thinking?

For what little it's worth since I'm not a mind reader, psychic or seer, here's a little estimate (or hope?) of what will happen when the courts get through fucking around where they had no business involving themselves. But don't expect much. My record of forecasts is dismal at best.

At some point, it must come either to the Florida legislature appointing electors with nothing but the vote tallies of the week following the Tuesday election day or to the Florida Secretary of State being handed the job back to make her certification.

If the former occurs, the Florida legislature will likely appoint electors on essentially the same basis as would the Secretary of State. In this instance, I think it will be more difficult for the Democrats to wage their smear campaign since here they can't merely demonize a single person. It seems to me much more difficult to demonize the entire Florida legislature than it is to demonize one officer of the state.

But I must admit that Clinton did have remarkable success in his endeavor to demonize the Republicans in Congress during his reign of lawlessness because he had the willingness of the press to turn a blind eye to his criminal and otherwise egregious behaviors and to propragate as fact anything he and his mouthpieces would utter no matter how outrageous.

In the latter case, my guess is that the Secretary of State will execute her duties as defined in Florida law and as previously advised based on existing case law. I'm betting (about $0.02) that she will certify the vote based on the information she had on the morning of Nov 11 and the votes from the absentee ballot counts and certify based on that information that George W. Bush is the candidate winning Florida's electoral votes. She will reject the hand jived ballots out of the Democrat precints where they have been manipulated and reinterpreted to render an outcome in Algore's favor because she has solid grounds to believe that the results are fraudulent as does any rational thinking individual.

And following that you're going to see Algore and the Democratic party embark on a campaign of character assassination, image smearing, mud-slinging and demagoguery that will make the Clinton attacks on Ken Starr look like a festivity of praise and support. There will also likely be a publicity drive to the effect that Bush stole the Florida election.

The Democrats have a good track record at blaming others for their own misdeeds and as long as it succeeds, I expect they will continue to use this very effective tactic. And as the election campaign adequately demonstrated, the Democrats are seldom if ever constrained by limits ot ethics, honor, or truth. They have demonstrated full acceptance of the collectivist ideology that the end justifies the means.

Algore is convinced that he's the rightful heir to succeed Slick Willie on the throne and he's not giving up without a major fight, ballots be damned, law be damned and don't stand in his way.

And finally, if the Florida Supreme Court makes the decision, they will hand the election to Algore based entirely on partisan political loyalty. They will use the confusing ballot bullshit as a reason or perhaps some other trumped up nonsense but the bottom line is they will find a way to put Algore in the White House if it's within their grasp, however tenuous that might be.

 

[Slut_boy]

Bill, I like the poker game analogy but I am afraid that I could never agree. The law must be flexible enough to be able to meet the new challenges that were not (and could not) have been envisgased by the drafters of the original document. The law must be able to meet modern challenges and unfortunately a "literal interpretation" (based on a literal reading where the words in the constitution give meaning) will not always allow for this. Neither will an "intentionalist interpreation" (where one looks simply at the intention or purpose behind the words).

Sometimes we do need to go beyond the literalist-cum-intentionalist approach. This is surely true if you are a naturalist (believing in a higher law and indeed a higher morality as binding). Constitutions must be able to cater for unpredictable situations - whenever such may arise, and in whatever form. If this wasn't possible then surely any situation falling beyond the ordinary meaning of the words would be incapable of justiciable intervention? How would you, for example, deal with the relationshiop between law and morality when morality is constantly changing? The law must also be capable of change - this is done through generous interpretations of its provisions.

If the law was incapable of changing with morality then I, for one, would be in a lot of shit (because infidelity used to be a crime when the olden morality still valued it as sacrosanct). If the law was not a flexible living organism then it would be incapable of adapting to the changing needs of society.

[Edited by Slut_boy on 11-27-2000 at 05:35 AM]

 

[Unclebill]

Originally posted by Slut_boy
Bill, I like the poker game analogy but I am afraid that I could never agree. The law must be flexible enough to be able to meet the new challenges that were not (and could not) have been envisgased by the drafters of the original document. The law must be able to meet modern challenges and unfortunately a "literal interpretation" (based on a literal reading where the words in the constitution give meaning) will not always allow for this. Neither will an "intentionalist interpreation" (where one looks simply at the intention or purpose behind the words).

I think we agree to an extent at least. The U. S. Constitution does lack something very important that IMNTBHO is what has allowed the gross misinterpretation of its meaning and the institution of things never intended to be allowed by the Founding Fathers.

That missing piece is a solid philosophical basis for the fundamental principles upon which the United States of America was founded. A coherent form of that philosophy didn't exist until the 1950's yet the founders of the United States achieved a remarkable feat in their efforts to define a government that would be kept in check and prohibited from violating the rights of the individual. Their primary efforts were geared toward not allowing too much authority to be vested in the central (Federal) government and in that effort they achieved a reasonable success.

Where they failed to enact adequate restraints was in the states' governments. Those were presumed to be limited by the same constraints, I believe, by the founders but the lack of specificity has been exploited by politicians to extend the reach of government much farther than is compatible with a free society.

I believe that a growing practice of judicial activism that interprets far too much into the Constitution has resulted in the passage of laws and allowing them to stand which has vested far too much power and authority in the Federal and state governments. The founders set up the mechanism to protect the individual's freedom and yet we have a plethora of laws which violate, abrogate and restrict that freedom with no opposition in any of our current political leadership (pardon the oxymoron, but I think you get my point). What has not been achieved by direct legislation has been accomplished by the establishment of bureaucratic positions vested with the authority to make regulations carrying the weight of law.

Originally posted by Slut_boy
Sometimes we do need to go beyond the literalist-cum-intentionalist approach. This is surely true if you are a naturalist (believing in a higher law and indeed a higher morality as binding). Constitutions must be able to cater for unpredictable situations - whenever such may arise, and in whatever form. If this wasn't possible then surely any situation falling beyond the ordinary meaning of the words would be incapable of justiciable intervention? How would you, for example, deal with the relationshiop between law and morality when morality is constantly changing? The law must also be capable of change - this is done through generous interpretations of its provisions.

If the law was incapable of changing with morality then I, for one, would be in a lot of shit (because infidelity used to be a crime when the olden morality still valued it as sacrosanct). If the law was not a flexible living organism then it would be incapable of adapting to the changing needs of society.

The ability of the Constitution to deal with the unpredictable situation is the very reason the philosophical basis for it must be explicitly a part of it. The philosophical portion provides the coherent foundation and defines the underlying principles for dealing with the unpredictable concrete events.

As to the relationship between law and morality, with the exception of those things that can rationally and reasonably be defined as crimes from a philosophical basis given the fundamental principle is the rights and freedom of the individual, they should never be mixed. The attempts to legislate morality has never worked and will never work so long as even the pretense of individual rights and freedom is preached.

The attempts to legislate morality results is political crimes which is a sign of the degeneration of a government and hence a society. The more common term bandied about is victimless crimes. My question then becomes, what was the crime if there is no victim? The answer obviously is that there was no crime. There was a transaction that some or many or few consider immoral and reprehensible and have managed to wield enough political clout to get a law of prohibition passed which punishes people for making free choices and associations in a free society.

But in truth, there is no crime. This is the sector of crimes on which America wastes so much time, money and manpower today. We proved in the early twentieth century that prohibition laws do not work when the Eighteenth Amendment to the Constitution. What that did was create massive criminal hordes with lots of money to buy corrupt politicians and police so they could make even more money. That single change made many very unworthy and unethical people very rich. Finally someone was smart enough to figure out the reality that prohibition of alcohol didn't work and the amendment was repealed.

But the stupidity continues until today with more of the same moronic prohibition laws; drugs, prostitution, gambling, etc. Unfortunately, the people who are smart enough to realized it and want to stop it are vastly outnumbered by the fools who think that a war on my right to choose how I live my life is a good thing. These are people who seem to be able to deal only with discrete concrete events and have no clue of the underlying principles involved.

This is one of my primary criticisms of Rush Limbaugh. He can address two specific events and laud one and condemn the other seemingly totally oblivious that both events are connected by a single conceptual principle which demands you either laud or condemn both.

And as an afterthought, let's address the point of criminal law. I presume we can agree that murder is a moral violation that also legitimately classifies as a crime, so I'll use that as my example. There is no purpose for a law prohibiting murder. Honest men will not murder and dishonest men will ignore the law. The only practical and reasonable purpose for a criminal law then is to prescribe punishment suitable to the crime. Anything written as law beyond that is extraneous.

 

[Slut_boy]

Legislating morality

That is a very interesting post. I appreciate the Limbaugh paradox and I understand where you're coming from, except that your submission denying that morality can't be legislated is surely subject to qualification - constitutions are legislated and the rights enshrined therein are values-based (the right to life, to liberty, to free speech, to dignity, etc).

The US Constitution is a codification of fundamental rights and its drafters sought to create a set of inalienable rights. The rights are normative and represent the values held dear by society. Surely this is morality legislated? It seems to me that this is the only plausible view that can be seriously accepted if you take the values in the constitution as a reliable statement of good public policy (which in turn is the boni mores or literally translated the "good morals" of society).

Do you see what I mean Bill? I don't want to seem to be picking up on only one point that you make, because you make some other very valid ones too - the one that I especially like is strangely somewhat of a contradiction in the context of your post - your reference to "the philosophical basis [behind the rights] to the constitution". It is interesting that most Commonwealth Bill's of Rights have preambles and clauses that assist with interpretation and how interpretation ought to be realised. The Canadian Charter for example speaks about the right having to be interpreted in such a way as to give effect to the values that underlie it's provisions. The South African Bill of Rights says that its provisions must be given a meaning consistent with the values underlying a "free and open democracy based on liberty, equality and human dignity". Is this the philosophical basis that you are referring to?

[Edited by Slut_boy on 11-27-2000 at 09:21 PM]

 

[Slut_boy]

Sorry, that last paragraph is incomplete.....

If that is indeed the philosophical basis that you are referring to, then isn't the point made that morality is often legislated.

I think that a distinction needs to be made between understanding both law and morality to be codes and standards of expected conduct on the one hand; and understanding the moral duty to obey the law on the other.

In the first scenario I like to think of the relationship of law to morals as being two intersecting circles, the part inside the intersections represents the common ground between the two spheres and the parts outside represent the distinctive realms in which each holds exclusive sway.

That is the problem in my mind with "Sharia" (Muslim Law) where practically all overlaps. I think it precarious when religious values become binding and carry sanction.

 

[Unclebill]

A Slightly Different Perspective ...

Originally posted by Slut_boy
That is a very interesting post. I appreciate the Limbaugh paradox and I understand where you're coming from, except that your submission denying that morality can't be legislated is surely subject to qualification - constitutions are legislated and the rights enshrined therein are values-based (the right to life, to liberty, to free speech, to dignity, etc).

We have an interestingly different perception here. The U. S. Constitution I do not see as legislation or a codified set of laws. Rather, it is a quasi-philosophical and definitions document. It describes the government structure, responsibilities of the branches, the mechanism of checks and balances, what qualifications are required to hold elected offices, etc. and broadly describes principles to be observed in creating legislation, i. e., codification. Even the Bill of Rights begins "Congress shall make no law…" which implies that Congress was to create the codification for operation of the government.

As to the specific rights noted, the Declaration of Independence states in summary these rights in three terms: Life, Liberty and the Pursuit of Happiness. And to a specific point, note they did not express a right to happiness, only the right to its pursuit. They were wise enough to understand that one may never find happiness even given the freedom to seek and pursue it.

Similarly, there is no right to dignity. Dignity, like trust, or any other personal value must be earned and maintained. The reasonable and honest man grants each man he meets anew a certain level of trust, honor and dignity (in a word, respect). If their interaction continues, that respect may remain unchanged, it may grow or it may diminish. The changes in that level of respect are the product of the interaction between the two. If a party demonstrates a consistent pattern of honor, honesty and integrity, the respect at least remains unchanged or more likely improves. On the other hand, if a person demonstrates himself to be undependable, dishonest or corrupt, that level of respect diminishes or disappears.

Originally posted by Slut_boy
The US Constitution is a codification of fundamental rights and its drafters sought to create a set of inalienable rights. The rights are normative and represent the values held dear by society. Surely this is morality legislated? It seems to me that this is the only plausible view that can be seriously accepted if you take the values in the constitution as a reliable statement of good public policy (which in turn is the boni mores or literally translated the "good morals" of society).

The U. S. Constitution did not codify fundamental rights. The Bill of Rights was added at the insistence of some. It was opposed (I believe by James Madison but memory may fail me on the name) on the basis that the government was prohibited from acting without specific permission granted in the Constitution.

Likewise, the drafters did NOT seek to CREATE a set of unalienable (sic) rights. Rather as stated in the Declaration of Independence, they recognized these rights as innate; "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…". Their statement here is clearly acknowledgement rather than declaration or fiat. And note that despite what many people would like you to believe, they did not attribute these rights to God, but to a Creator which might or might not be God. Rush Limbaugh (him again) likes to play up this idea that rights are God-given and has on occasion referred to our Constitution being based on religious principles. But if you check, you'll find that the word "God/god" does not appear in the U. S. Constitution.

Originally posted by Slut_boy
Do you see what I mean Bill? I don't want to seem to be picking up on only one point that you make, because you make some other very valid ones too - the one that I especially like is strangely somewhat of a contradiction in the context of your post - your reference to "the philosophical basis [behind the rights] to the constitution". It is interesting that most Commonwealth Bill's of Rights have preambles and clauses that assist with interpretation and how interpretation ought to be realised. The Canadian Charter for example speaks about the right having to be interpreted in such a way as to give effect to the values that underlie it's provisions. The South African Bill of Rights says that its provisions must be given a meaning consistent with the values underlying a "free and open democracy based on liberty, equality and human dignity". Is this the philosophical basis that you are referring to? If that is indeed the philosophical basis that you are referring to, then isn't the point made that morality is often legislated.

The Preamble to the U. S. Constitution contains virtually nothing of real substance. It is a general introductory statement to the following definitions, etc. A more appropriate definition of the philosophical basis is provided in the Declaration of Independence, albeit very abbreviated. It is there that they acknowledged the ideas of individual rights and freedoms and expressed the proper relationship between the government and the governed. And note that they referred to the populace as the governed not as the ruled or subjects. This to me says they understood that in a society of free men, the function of government was to assure reasonable order. That it is not the purpose of government to prescribe and dictate the conduct of personal lives and behaviors of citizens.

The Constitution does not legislate morality but rather describes the structure, composition, functions and responsibilities of the government. The Bill of Rights specifies certain aspects of individual freedoms inviolable by the government and was not considered by the framers to be all inclusive. In fact, that was a specific objection to the Bill of Rights when it was proposed. The concern was that there would come about an interpretation that something not specified in the Bill of Rights would be considered to have been an intentional exclusion and those presumptions have come to pass already.

Specifically, the imposition of laws defining so-called victimless crimes or more appropriately political crimes. These include drug, gambling, prostitution, abortion prohibition laws, etc.

Likewise there are numerous laws which in reality violate the specification of separation of church and state. An example of this is among the Socialist Welfare laws which forcibly take a person's earnings and provide them to another person to pay for something that the provider of the funds does not philosophically support. For example, a Catholic who is forced to pay for someone's abortion. Their religious belief is rendered irrelevant by this law in that they are coerced to finance that which is opposed and prohibited by their religious faith and which they would not voluntarily support.

Originally posted by Slut_boy
I think that a distinction needs to be made between understanding both law and morality to be codes and standards of expected conduct on the one hand; and understanding the moral duty to obey the law on the other.

While both law and morality are codes, they are distinctly separate and must be kept so if a free society is to exist. Laws properly deal most fundamentally with criminal behavior and the procedures for dealing with suspected and convicted criminals. Criminal behavior is a standard which can be rationally, objectively and consistently defined within the scope and context of free men living in a free society which is derived from the philosophical principles upon which that society is founded.

Morality on the other hand is not universally definable otherwise there would be only one religion or moral code in existence. Since this a subjective choice of the individual, it is the individual's right to make that choice free of coercion. The right of the individual cannot be infringed or abrogated and the concept of freedom maintained intact.

Also, since the concept of a 'right' is universal, i. e., applies equally to all men, then a right cannot obligate another to provide anything for you. Your right gives you full and complete ownership of your life. It does not allow another to place an involuntary obligation on your life or property just as it does not permit you to impose any involuntary obligation on another. The only obligation your right imposes on anyone would be of a negative nature, i. e., that they NOT VIOLATE your rights.

When I made the statement that you cannot legislate morality it was from the perspective that such laws never work and the existence of such laws denigrate and diminish respect for legitimate laws which deal with proper endeavors of government. And what is the moral obligation to obey an immoral law, i. e., one that violates your rights? The following quotation provides an excellent illustration.

There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.
-- Ayn Rand

This becomes a situation where one complies from fear rather than respect. The existence and enforcement of such laws are indicative of totalitarianism, a system in which the government is the aggressor (criminal) and the citizen is without defense since the government is also the arbiter and adjudicator of any dispute or disagreement. The government creates for itself a conflict of interest because as the protective agent of the citizen it has an obligation to protect his rights but as the creator of the legislation it has an obligation to enforce that legislation which mandates violation of the citizen's rights, e. g., IRS codes (there are numerous others but this is probably the most widely understood).

Originally posted by Slut_boy
In the first scenario I like to think of the relationship of law to morals as being two intersecting circles, the part inside the intersections represents the common ground between the two spheres and the parts outside represent the distinctive realms in which each holds exclusive sway.

I like your perspective that the two are intersecting spheres but have a minor variance of perception from yours. I see the two spheres as a smaller one (law) within a larger (morality). I cannot see where law would deal with something the falls outside the sphere of morality.

Morality deals with every facet of human endeavor where a decision comes into play which includes any action that one might contemplate or take. This includes such inane things as what movie to see to the horrendous decision of whether or not to murder your neighbor. Moral decisions are involved in your choice of friends, employees, employers, business associates, business transactions, etc.

I hold this perception because morality is the code that establishes our value definitions and those value definitions are the basis for decisions when a choice is available. However, not every moral choice is an appropriate juncture for coercion (law) to be interjected.

The simplest, most consistent basis on which to classify as criminal an action taken by a person is that if the act involves the initiation of the use of force; if so, it is a crime. The force may be overt (a gun in your face) or covert (calculated misrepresentation of a proposal). If the action is an independent action, i. e., does involve the initiation of the use of force, it is not a crime and moral principles are appropriately the means of determining the action proper or not. As an example, in my youth, it was a strict Catholic adherence to religious belief that one did not eat meat on Friday. That tenet was honored to the extent that in the community in which I grew up, even the public schools served fish instead of meat on Friday (an interesting dichotomy based on the fact that fish flesh is still meat since it is the tissue of an animal). However, as a Southern Baptist, I was under no such moral restriction.

Originally posted by Slut_boy
That is the problem in my mind with "Sharia" (Muslim Law) where practically all overlaps. I think it precarious when religious values become binding and carry sanction.

I absolutely agree. What you describe there is tyranny in a very blatant form and as is typical of tyranny, it is its own justification. That's why the following has become a member of the select group of my favorite quotations:

If you are not free to choose wrongly and irresponsibly, you are not free at all.
-- Jacob Hornberger, 1995

 

[Slut_boy]

Yes, much of what you say makes perfect sense. I am still not convinced on the issue of morality being legislated - but I think that I introduced the confusion by using the "constitution" interchangeably with the "Bill of Rights". I am sure that you are right to keep them seperate. Don't you think that 'negative' duties on the state are still in keeping with giving morality the force of law? Consider this example: A clause in the Bill of Rights says "no person may be discriminated against on the grounds of race, creed or culture" (New Zealand Bill of Rights). What the provision is in effect saying is that if you do discriminate then your conduct is unlawful. That provision was born out of a moral code because racial discimination is normatively unacceptable. Yet it is given legal credence - although not 'positive' law it is no less binding on the State.

Something that is fascinating though, is your statement to the effect that you don't see how law could fall outside the sphere of morality. Its easy for me (who has spent most of my life growing up in South Africa) to see that it is possible - and in many States a reality. You see, countries that don't have a Bill of Rights also don't have a system of constitutional supremacy. In these places the State is subject to a system of Parliamentary sovereignty. Under constitutional supremacy the laws and conduct must all be compliant with the provisions of the constitution otherwise they will be invalid. But under parliamentary sovereignty it is the legislature's enactment that makes laws valid, not the content and constitutionality of the laws themselves.

And so, under this system (which is where SA was until 6 years ago) parliament could pass any law and it was not capable of being legally challenged. Parliament frequently passed unjust (or immoral laws) - the notorious species of Apartheid legislation is a perfect example of this. We all have a sense of injustice when laws are made that discriminate against some on the groungs of race - you don't need a constitution to know that, but you do need a constitution (Bill of Rights) to declare a law so unjust to be illegal or unlawful.

And so I do think think that in some jurisdictions it is possible (and in fact does happen) that law and morality do not co-exist within the same sphere. My point of interest is the "moral" duty that judges have not to uphold immoral laws, even if they are legally binding. This, you may recall, was the reason that the Supreme Court judges in Nazi Germany were put on trial at Nuremburg. A failure to protect the meak from an abuse of power by the strong, and the persistence in upholding grossly unjust laws was deemed to be a crime against humanity. To me this seems to suggest that the dichotomy between law and morality is actually fairly narrow.

I think that if you treat each of the spheres of law and morality as exclusive (not that this is what you are saying, but some do) then you'll find that neither can resolve questions of validity save within their own exclusive sphere. Hegel (one of my favourite thinkers) wrote extensively on this.

 

[Deborah]

Slut_boy, you need a vacation.

Uncle Bill, you need a muzzle.

The only reason any of this legalese matters is because the election is so close.

BTW, do you know what political pundit said, on 11/7 at 4:37 left coast time, "Whatever happens in FL and PA will tell the story of how this is going to shake out. If Bush is declared the winner in those states early, it's over. If it's close in those states, this could go on and on and on."

Hillary benefits most from all this shit and four years from now Bill will be back in the White House with nothing to do but drop his pants for airhead interns.

 

[Slut_boy]

Deborah,

Now what kind of a post is that? And who said that there is anything wrong with dropping your pants? I know that you would never think that ..... er ... would you baby?

 

[Deborah]

Slut_boy, I'd drop my panties, but only if you promise not to steal them.

Good news: Slut_boy took my advice and went on vacation. To Australia and Singapore and other exotic places so we probably won't hear much from him much for a couple weeks.

More good news: Uncle Bill took my advice and went to the pet store. Just be careful, Uncle Bill, some days you fuck the dog and some days the dog fucks you.

I'm watching this hearing in Tallahassee on MSNBC and this lawyer is telling some farm story about how all animals are equal, so all votes are equal. Huh? How did bestiality enter into this? Uncle Bill, is this your doing?

I listened to the U.S. Supreme Court session yesterday. I'm sticking to my prediction, the FL Supreme Court gets slapped upside the head. Nobody knows who the political pundit who said this would go on and on and on is? Do your homework. Read the fine print.

 

[Unclebill]

Not the pet store, Deb, just busy

Originally posted by Slut_boy
Yes, much of what you say makes perfect sense. I am still not convinced on the issue of morality being legislated - but I think that I introduced the confusion by using the "constitution" interchangeably with the "Bill of Rights". I am sure that you are right to keep them seperate.

While they are identified separately, the Bill of Rights are amendments to the Constitution, and thus part of it. They are however, addressing very different issues that the body of the document. The body of the document provides the architecture of the government defining its specific composition, the manner of selecting those who comprise it, the responsibilities and authorities of each segment, etc.

The Bill of Rights was an attempt to enumerate certain aspects of the rights of the citizens. Those opposing the Bill of Rights feared that it would become considered a full and complete enumeration of those rights. Their prophetic stance is proving to be far better than even they probably believed. There are assaults on even those things specifically enumerated in the Bill of Rights.

Originally posted by Slut_boy
Don't you think that 'negative' duties on the state are still in keeping with giving morality the force of law? Consider this example: A clause in the Bill of Rights says "no person may be discriminated against on the grounds of race, creed or culture" (New Zealand Bill of Rights). What the provision is in effect saying is that if you do discriminate then your conduct is unlawful. That provision was born out of a moral code because racial discimination is normatively unacceptable. Yet it is given legal credence - although not 'positive' law it is no less binding on the State.

So long as this provision is applied solely to government, it is a legitimate statute. Once it is allowed or considered to apply to a free man in a free society, it becomes illegitimate because it now presumes the government to make moral choices for its citizens at the point of a gun. In essence, the government presumes to say you have the right to choose but only so long as your choice agrees with our determination of what your choice should be.

Simply refusing to have business or personal relationships with a person or group of people does not make you a criminal. For example, if I operate a restaurant and I choose not to serve a potential customer for any arbitrary reason whatever, I am within my right of free choice.

On the contrary, if I work as a government employee, e. g., a police officer, I am not permitted the choice of whether or not to render aid to any citizen in harms way because I am acting as an agent of government. When not in performance of my governmental duty, i. e., off-hours, I may choose to associate or not with anyone for whatever my reasons might be.

Originally posted by Slut_boy
Something that is fascinating though, is your statement to the effect that you don't see how law could fall outside the sphere of morality. Its easy for me (who has spent most of my life growing up in South Africa) to see that it is possible - and in many States a reality. You see, countries that don't have a Bill of Rights also don't have a system of constitutional supremacy. In these places the State is subject to a system of Parliamentary sovereignty. Under constitutional supremacy the laws and conduct must all be compliant with the provisions of the constitution otherwise they will be invalid. But under parliamentary sovereignty it is the legislature's enactment that makes laws valid, not the content and constitutionality of the laws themselves.

I find the last two sentences particularly interesting since the last one specifically describes the current state of rampant legislation in the United States with laws being created which give government agents and bureaucrats far more authority to intrude into the lives of free people than should ever be permissible. The preceding sentence states the limitation that is virtually ignored here anymore when legislation is proposed and enacted.

The fundamental principle to which I allude when offering statements concerning the legitimacy of government renders the governments you describe (which is virtually all in existence today, I do realize) as illegitimate. And the reason is that the authority of these governments supersedes the rights of a citizen to act freely and independently. They are effectively running roughshod over the people of their nation ignoring the individual (fundamental human?) rights.

Originally posted by Slut_boy
And so, under this system (which is where SA was until 6 years ago) parliament could pass any law and it was not capable of being legally challenged. Parliament frequently passed unjust (or immoral laws) - the notorious species of Apartheid legislation is a perfect example of this. We all have a sense of injustice when laws are made that discriminate against some on the groungs of race - you don't need a constitution to know that, but you do need a constitution (Bill of Rights) to declare a law so unjust to be illegal or unlawful.

Again we come to a difference of perception. The Bill of Rights in the U. S. Constitution has not prevented the enactment and long term enforcement of laws totally and completely in violation of the principles set forth in the Constitution and the Declaration of Independence.

All that is required is a solid philosophical basis used and specified as the foundation upon which a government is constructed. Once that philosophical basis is in place and the proper fundamental legislation is constructed placing proper and adequate limits on governmental authority, these laws become obviously blatant violations of the fundamental principles. Without such a philosophical basis, there are effectively no limitations on governmental legislative authority, hence the abhorrent state of volumes of ridiculous laws as we have in the U. S. which are clear violations of the fundamental principles set forth by the founders. These include everything from the laws establishing political crimes to exorbitant taxation to environmental regulations and legislation which have completely supplanted the principle of private property ownership.

And with regard to a law not subject to legal challenge, this is furtherance of my argument for the need to have adequate constraints on laws that may be enacted and mandated strict adherence to such guidelines. Why should the unnecessary burden be levied upon the citizen to bear the fiscal burden to legally challenged a law which legitimately should never have been passed from the outset? Free men in a free society should be protected by the government, not be burdened with the need or necessity to protect themselves from egregious legislation and government authority run amok.

Originally posted by Slut_boy
And so I do think think that in some jurisdictions it is possible (and in fact does happen) that law and morality do not co-exist within the same sphere. My point of interest is the "moral" duty that judges have not to uphold immoral laws, even if they are legally binding. This, you may recall, was the reason that the Supreme Court judges in Nazi Germany were put on trial at Nuremburg. A failure to protect the meak from an abuse of power by the strong, and the persistence in upholding grossly unjust laws was deemed to be a crime against humanity. To me this seems to suggest that the dichotomy between law and morality is actually fairly narrow.

I'm still puzzled by the concept of law having a sphere of influence that does not coincide with morality. From my perception, both deal with choices people make and the ensuing actions they take.

Properly, laws would deal with those choices people make which result in the commission of a crime. And in this respect, the proper relationship is for law to provide the outline for investigation of the crime, the incarceration and prosecution of suspect(s) and the punishment of those convicted.

Morality is involved when the choice involves any action. Any action that is not a crime but may be either good or bad is the exclusive province of morality. And it is here that for individual free citizens to practice irrational discriminatory behaviors is permitted albeit it abhorrent. Education is the tool for reducing this problem, not congesting the criminal justice system with non-criminal actions however inconsiderate, offensive or stupid they might be.

If the proper philosophical foundation is established as the basis for government and is adequately described, then the proper legislation and legislative processes will be put in place to preclude the requirement for the "moral obligation" of a judge to enforce immoral laws.

For example, under the U. S. Constitution, the courts authority is to interpret and administer the laws, not to create or repeal them. With adequate guidelines provided and adherence mandated, the immoral laws would not have been passed in the beginning. That negates the requirement for judicial activism, i. e., judges enacting or overturning laws from the judicial bench which is beyond their legitimate authority.

[In fact, this latter is what the Florida Supreme Court did when it interjected itself into the election process and obstructed the Florida Secretary of State in the execution of Florida law. That is why today the United States Supreme Court vacated the decision of the Florida court and sent the case back to them directing the Florida court to cite the law used as basis for their action with, I believe, their full knowledge and understanding that there is no such law. In essence, they struck down an example of judicial activism and very subtly slapped the wrist of the Florida court making it sound as if they could redeem their honor by citing their legal basis. The expectation being that once the hue and cry of the post election debacle recedes into the past, it will wither away without the Florida court suffering such severe public humiliation that it would be rendered virtually ineffectual.]

The fact that these guidelines are not in place is what has allowed so many of these egregiously oppressive laws to exist. The fact of their existence is real, the reason is legislators who have bestowed illegitimately upon themselves far too much authority with no accountability for their excesses. And I seriously believe that there is a severe lack of principles being taught either privately by parents or publicly by teachers regarding the deterioration brought about by a legislative authority moving ever closer to totalitarian rule and the basis on which to reverse this incremental progression.

Originally posted by Slut_boy
I think that if you treat each of the spheres of law and morality as exclusive (not that this is what you are saying, but some do) then you'll find that neither can resolve questions of validity save within their own exclusive sphere. Hegel (one of my favourite thinkers) wrote extensively on this.

I'm not familiar with Hegel beyond name recognition. I remember Ayn Rand mentioning him, Marx, Engels and other in her works. She had some very distinct judgements of their various ideas and ideologies.

I think you might find her works challenging and interesting reading.