Aces High Bulletin Board
General Forums => The O' Club => Topic started by: JBA on November 07, 2003, 12:37:45 AM
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http://www.americandaily.com/item/3352
full story
Justice O’Conner, Ignoring American Law?
By Warner Todd Huston on 11/06/03
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Justice Sandra Day O’Conner seems to have let her vaunted status as the Court’s “Moderate” go to her head recently. She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent more often in it’s decisions. There is nothing sudden or new in this, however, as she has also written such things in some of her decisions on the court as far back as 1988.
In an interview with David Rudenstine posted on the Benjamin Cardozo school of law/Yeshiva University Website, O’Conner said, “ … most countries, at least in the western world, face similar issues from time to time…They have faced many of the same issues we have and at roughly the same time. It is my sense that we have not paid close attention institutionally to the jurisprudence of Canada or other nations. I think that's changing.”
And then, when asked directly if Justice O’Conner felt that the Court should consider decisions by foreign courts to gain “additional insight on our own traditions or interpretations”, the Justice replied, “I would, if it were an issue that had a close parallel in decisions of that other country. I would be interested to know how they handled it, yes.”
This is dangerous.
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explain to me how this is dangerous? and how she is ignoring our constitution?
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Ooohh ooohh, we should throw out the Bill of Rights too, since it drew directly from the 1688 English Bill of Rights. We wouldn't want to learn anything from a bunch of foreigners.
Heaven forbid we don't put our heads in the sand and instead actually pay attention to the world around us.
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wow, i can honestly say i dont know how i feel about this...thats puzzleing.:(
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The problem is:
The Supreme Court rules on laws created as they relate to the US Constitution. By ruling based upon what foreign courts decide the Supreme Court steps beyond their bounds as set by the constitution.
The Supreme Court was created with the purpose of protecting the Constitution, not ignoring it. The only way you are supposed to change the Constitution is by Constitutional ammendment. Literally, the Supreme Court has no grounds to rule based upon what foreign courts say. It's a pretty slippery slope if you ask me.
I have no problem with 'doing things better' and if there is a better way found in a European system, or Asian system, or whatever then that is fine. But the US Constitution should be changed by Ammendment, not by fiat and that is what Sandra Day O'Connor is suggesting.
Yes, I know that it is has been debatable as to whether the US Supreme Court has overstepped it's bounds in the past. I believe they have but at least they have always payed lip service to the idea that they are following Constitutional Law.
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I see what you're getting at, wklink. I don't see any reference in the article to actually using any foreign court to set a legal precedent. No American lawyer or judge will ever cite "The People's Republic of China v. Shaing Woo" as an argument and expect it to stand up in an American court as a precedent.
I also see no reference to changing the Constitution in that article, only references to interpreting it. The courts have interpreted the Constitution and the laws of our legislatures since day one; it's what they're set up to do.
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Justice Sandra Day O’Conner seems to have let her vaunted status as the Court’s “Moderate” go to her head recently. She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent more often in it’s decisions.
tarmac it does say this in the first couple of sentences. Is there another "interpretation" of this statement that i'm missing...this does kinda scare me.
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Only the ignorant would be scared. There is a difference in looking at other systems, and actually applying them to ours(which is legally impossible). Dont be scared sweet sweet ignorant tards.
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Considering the source of this article "American Daily" is a right wing extreemist website, I'm sure that the article didn't take ANYTHING out of context and put an ugly spin on it. Didn't Reagan appoint her? Does this mean he didn't know what he was doing? I have no fear of the Supreme Court throwing out the US Code or the Constitution anytime in my lifetime.
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Where the heck does it say that she will ignore US law?
If she uses international views to aid her intrepeting your consitution better, I don't see how that equates her with ignoring it.
She would have to be concentrating on it in order to intrepet it. And what US precidents is she supposed to use in cases were your Supreme Court is setting precident, for the US?
Might as well look at what other countries with the same human rights have done, so she can render a decision with better context than none.
Cripes...double Cripes.
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Why look at other countries if you are not going to use them as a guide?
I see it like a PC programmer looking at a Mac programmer’s code to decide how to write a game
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Originally posted by JBA
http://www.americandaily.com/item/3352
This is dangerous.
You're twisted JBA! Typical neo-nazi conservative.
Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.
For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.
Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.
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Originally posted by DmdNexus
You're twisted JBA! Typical neo-nazi conservative.
Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.
For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.
Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.
And you're an idiot.
Considering the legal decisions of foriegn courts to help decide what the rulings should be here has absolutely nothing to do with recognizing the marriage of a foriegn national. :rolleyes:
All of this depends on what O'Conner meant. By saying "understanding foriegn law" did she mean that attorneys and judges need to better realize what foriegn laws are when dealing in the global economy becuase it will help us compete better? Ie., if we realize what another country's laws are it will help us understand how to deal with that company which operates under those laws.
Or did she mean that we need to start using international laws to help define our own?
If she meant the former, then I agree. By understanding foreign laws when you are dealing with companies from another country, you can have a better understanding of how that company does business. And how to do business in that country yourself.
However, the if she meant the second, this could mean trouble. The US Constitution was based on English laws and French ideas (an interesting mix). But, it is my belief that the only piece of paper that should define the legality of our laws it the Consitution as it is presently written. I don't care how a certain country has decided to interpret a question of law in their country. Their law isn't bound by our Constitution. If the Supremes, or any other court, has to make a decision, let them base it on our laws and our preceeding cases. Not what goes on in other countries.
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Originally posted by DmdNexus
You're twisted JBA! Typical neo-nazi conservative.
Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.
For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.
Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.
I find if funny that worrying about the potential subversion of the US Constitution somehow makes someone a neo-nazi conservative. I suppose that you are someone that calles the Cosntitution a 'living document' that can be reinterpreted as convenient for whomever is in power.
That is the danger in just assuming that a 'liberal' (and I'm not meaning liberal in a political direction) interpretation of the constitution is automatically benign. There may come a day when someone will be in charge that you may not politically agree with and that 'liberal' precident may come back and bite you.
I believe the US Constitution is the law of the land in the United States. It was, and is, the foundation that this country was and is based on. The founders put forth ways to amend the document as necessary via the amendment process, a way that is bulky but IMHO necessary to keep people from making rash changes that can cause more trouble later on. It still happened (anyone remember prohibition?) but this system put forward has kept the government stable and relatively honest over the last 200 years.
Maybe Dune is right, maybe she meant it as a way to understand foreign law. However, her job isn't to understand foreign law, her job is to interpret the Constitution of the United States. It's like having a 3rd base umpire look at football games and then make calls on the field because he thinks a football ref may have a better penalty system.
Don't ever assume that things will always be OK.
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Originally posted by Frogm4n
Only the ignorant would be scared. There is a difference in looking at other systems, and actually applying them to ours(which is legally impossible). Dont be scared sweet sweet ignorant tards.
You mean like being scared of the Patriot Act....I get your point.
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It's a bit like a Texas State court using a California state court ruling to add insight to a case. It's not manditory authority, as if it had come from the Texas Supreme Court, but just something they can consider in addition to other factors.
It's not like she's going to elect herself Queen of America or something lol.
-Sik
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her job is to interpret American law. that's it.
by even considering how the situation is handled elsewhere she only confuses the issue and poisons the decision. (much like allowing a jury to hear irelivant testimony).
if congress wants to consider how other countrys do things when writting american law, that's fine and exceptable(although this should take a back seat to what the people who put them in office want).
but the courts job is to interpret american law, not write law.
how would you feel if you did your best to follow the laws of our country, played by the rulebook all the way down the line and then lost a lawsuit because somewhere else in the world what you did wasn't allowed.
one of the rights we have is to have our laws stated in writing (clearly stated would be nice but there are lawyers involved).
by allowing forign decissions to be considered you give then some degree of influence. now a person can't just hire an attourney to guide him, and keep on the goodside of the law if he gets involved in a complicated issue.
how do you know what countrys are going to be considered? what if somecountrys go one way on an issue and others go another (very likely)? which countrys decision is allowed to have influence in our courts?
shouldn't they be required to anounce that when the law is written? you're not given fair access to the law, what if you go into a situation thinking the courts are going to take into consideration the way this was handled in brazil and you get to court and they blind-side you with a nova scotia precedent.
by the time a person makes it to be a judge (let alone a supreame court justice) they should no how to base a decision on relevant information and precedents only.
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It's a bit like a Texas State court using a California state court ruling to add insight to a case. It's not manditory authority, as if it had come from the Texas Supreme Court, but just something they can consider in addition to other factors.
not at all the same. texas and california both work under the us constitution, in the apeals process both cases would end up in the us supreame court eventually. seperate branches of the same tree, so to speak. this makes decisions in the other courts relevant as it gives a judge an idea as to if his decision is likely to be overruled.
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Apathy is right.
Courts often look to laws in other US jurisdictions to see what other US courts do. The is especially true if an issue that hasn't been dealt with before comes up. Which happens surprisingly often.
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I would expect all of the Supreme Court Justices to be aware of foreign precedent. Is she suggesting that the Supreme Court begin making US law based on foreign law? Surely not as the Judicial branch of our government does not make law. Or at least they better not be making law.
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OH My GAWD!!!!
THIS is Horrible!!!! She wants to "GAIN INSIGHT"!!!! The lousy commie no good biatch!! Next thing you know she'll be "LOOKING INTO" things before making her "DECISIONS".
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Originally posted by capt. apathy
not at all the same. texas and california both work under the us constitution, in the apeals process both cases would end up in the us supreame court eventually. seperate branches of the same tree, so to speak. this makes decisions in the other courts relevant as it gives a judge an idea as to if his decision is likely to be overruled.
Only if the case is appealed to the supreme court, in which case it would become manditory authority, and the Texas court would have no choice in the matter. My example is only applicable on State issues that have been settled below the SC level.
-Sik
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Originally posted by Sikboy
Only if the case is appealed to the supreme court, in which case it would become manditory authority, and the Texas court would have no choice in the matter. My example is only applicable on State issues that have been settled below the SC level.
Law geek.
I'm sure what SikBoy meant to say was that Texas and California belong to different federal circuits. While Supreme Court rulings apply to the entire country, appeals rulings decided within a circuit (at the Circuit Court of Appeals level) but not successfully appealed to the United States Supreme Court become binding legal interpretations within that circuit only.
Thus while the 5th Circuit (Texas) and the 9th Circuit (California) both remain subserviant to the Supreme Court, appeals decisions made within one do not apply to the other. Nonetheless, a judge from one circuit may use the decision of a judge in another circuit as "guidance" when forming an opinion of his own.
-- Todd/Leviathn
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Originally posted by Dune
But, it is my belief that the only piece of paper that should define the legality of our laws is the Consitution as it is presently written.
Interesting, one of the main authors of the document disagrees with you. He believed that the Constitution should be completely redone every 20 years or so.
h
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Originally posted by Horn
Interesting, one of the main authors of the document disagrees with you. He believed that the Constitution should be completely redone every 20 years or so.
h
Maybe, but the majority obviously didn't otherwise there would have been a provision for just that.
In fact, the only way to redo the constitution is through Constitutional convention. The constitution was written so it would be exceedingly difficult to change without a supermajority vote.
The law of the land should be the Constitution. It troubles me that people seem to think that it should be disregarded when inconvenient. Unfortunately people on both sides of the political spectrum seem to run to bench legislation when it is decided that the will of the people is inconvenient or too slow.
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Originally posted by wklink
In fact, the only way to redo the constitution is through Constitutional convention. The constitution was written so it would be exceedingly difficult to change without a supermajority vote.
The law of the land should be the Constitution. It troubles me that people seem to think that it should be disregarded when inconvenient. Unfortunately people on both sides of the political spectrum seem to run to bench legislation when it is decided that the will of the people is inconvenient or too slow.
Why treat a document authored by men as holy writ? The framers of our Constitution were smart enough to speculate that there would be many societal differences occurring in the years to come that they could not possibly have the foresight to address in the document they created.
As Thomas Jefferson stated:
"Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:40
He had more to say when it comes to constitutional revision:
"Let us provide in our constitution for its revision at stated periods. What these periods should be nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself that received from its predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the constitution, so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:42
...and further:
"Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal." --Thomas Jefferson to James Madison, 1789. ME 7:459
Sounds reasonable to me.
h
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Our constitution isn't written in stone, just look at all the ammendments. However, we do have procedures whereby it is changed, Supreme Court interpretation isn't it.
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I would expect all of the Supreme Court Justices to be aware of foreign precedent.
I see nothing wrong with being aware of these laws.
but o'connor says we should consider other countries when making decissions.
this is a completely different thing.
I'm aware of many things that I don't take into consideration when making decisoins.
I may be aware that it's about 85 degrees in Hawaii right now, but I don't take that into consideration when deciding if I need a coat when leaving the house.
why? it's not relevant.
same thing with the laws of other countries. here we go by american law and the law elsewhere isn't relavant.
someone who is unable to make that distinction isn't qualified to be a judge.
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Originally posted by Dead Man Flying
I'm sure what SikBoy meant to say was that Texas and California belong to different federal circuits.
:p
Actually, I had hoped to avoid the Federal Circuit system all together, because I was using seperate State Legal systems to illustrate my point.
But you're right, If you're talking about the federal system 9th circuit descisions are non-bindinig to 5th Circuit courts, unless they've been appealed to the supreme court.
I mean, it's pretty much the same situation, but I found it more compelling from the POV of State Courts, since we're talking about considering Alien legal rulings.
-Sik
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As I said before, he was one that thought it should have been changed every 20 years. However, Thomas Jefferson was just one member of the constitutional convention that framed our Constitution. I agree with him in his assessment that the Constitution shouldn't be an 'Ark of the Covenant'. Ours isn't, that is why constitutional ammendments are made to the document.
I could imagine the chaos that would ensue if we re-wrote the document every 20 years. Nuts, we can't agree on a budget half the time.
I don't mind changes to the constitution, I believe that we have created a better society because of it. I don't believe that judges should be making laws on their own. It should be the will of the people. If the law created by lawmakers is against the constitution then it should be struck down. If people want it anyway then ammend the constitution. Don't just go find a judge to change it for you. That is my point.
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Originally posted by capt. apathy
same thing with the laws of other countries. here we go by american law and the law elsewhere isn't relavant.
In some respects the European Union is establishing common laws and procedures among its member nations... in regards to business and trade.
As well as there is International law, which a lot of nations prescribe to.
What is the natural extension to this trend?
What will the future be in 50 years.
Does any one think that the world will be as it is today?
Or will nations all over the world be connected and interwined closer than they are today. Even the smallest of nation will be players in the global economy.
Bob Dole and Bill Cliton spoke at the Kennedy Center a few weeks ago and they both spoke about world vision.
The US's world vision is democratize the rest of the world, and to bring other nations into the fold of "civilized" and law abiding nations. This will promote the world economy, a higher living standard for all people, decrease nation vs nation violence, and promote world peace.
The question is how to do this. Idealy through persausion... never through force.
Did MLK persuade America to give blacks equal rights by using violence? No!
Will GWB persuade the middle east to become democratic through force... no.
Violence begats violence. And the represcusions of Iraq will haunt America for decades.
To convince another nation to see America's point of view... America's world view... America must first respect their people, their laws, and their cultures.
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Oh man this board just keeps getting better. This thread is truly an example of the quote from Wulfie in my sig.
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Sikboy is right in that decisions from different states and different Federal circuits are not binding on each other. However, both the states and Federal circuits can look at others to help them make their own decisions becuase the basis for all of their laws is the Consitution.
Horn, I would have guessed Jefferson felt that way:
That government is best which governs the least, because its people discipline themselves.
- Thomas Jefferson
Jefferson really didn't like government at all. He was much to fond of the French ideas of Enlightenment and lifting the human condition above the morass of etc....And besides, most of the Framers weren't all that fond of governments anyways.
However, as has been said, I can only imagine the chaos if all our laws were subject to change every 20 years. And there is a mechanism to change the Constitution. There are several. Because the words of the document are subject to change. However it is not an easy process. Nor should it be.
And every time the Supremes take the stand the meaning of the document can be changed. And this can be a problem.
Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.
- Hugo L. Black
Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.
- Abraham Lincoln
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
- James Madison
I believe the basic truths in the Constitution and the Bill of Rights should not be changed. I believe that they are just as true now as they were when they were written. Beliefs and feelings change with the times The Constitution shouldn't change with them. It should be a constant. Not unchangable, but not easily changable.
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Originally posted by Dune
However, as has been said, I can only imagine the chaos if all our laws were subject to change every 20 years. And there is a mechanism to change the Constitution. There are several. Because the words of the document are subject to change. However it is not an easy process. Nor should it be.
Chaos indeed--imagine then throwing in all the various special interest parasites that have burrowed their way into the system! The basic thesis however still stands: Our lives are much, much more diverse than Jefferson's Gentleman Farmer and some of our rules are antiquated.
I'm not advocating doing away with existing laws, just updating them for currency. The definition of "militia" for instance and how it affects our interpretation of the document as just one example. There are several other examples but so as not to run on--the fundamental issue would be: Are we mature enough as a society to cast a ballot to change, delete or add to the basic contitutional document?
I think we could do it. If you a person were on the losing end of a law you would then have 19 years to convince everyone to change it back or revise it.
The Constitution should be a living document representative of the society it governs today--not a society of 200 years past.
h
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Originally posted by Hortlund
Oh man this board just keeps getting better. This thread is truly an example of the quote from Wulfie in my sig.
What the heck you expect from a BBS? :aok
Get with the program you liberal biased retard! :p
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To convince another nation to see America's point of view... America's world view... America must first respect their people, their laws, and their cultures.
Kinda like Sadam did with his people?
We didn't respect Sadam, however , we are respecting the wishes of the Iraqi people....but of course you only see the radicals killing our troops and make the assumption that they represent the majority of the Iraqi population.
Your preferred method has failed miserably for the past 50 years....all of this love is viewed by the radical elements as weakness.
The radical elements want the Muslim world of 1000 years ago...not a modern world....they fear what they do not understand....kinda like you:)
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Originally posted by Rude
We are respecting the wishes of the Iraqi people....
Really? Did the Iraqi people vote for this - before America started killing people them?
And now, it's not the Iraqis that are fighting American's... it's the terrorists from other countries. Well isn't that convenient.
You only see the radicals killing our troops and make the assumption that they represent the majority of the Iraqi population.
You can read my mind? You know what I assume?
Ah that's right because you know what the "majority of the Iraqi population" thinks and wants...
American soldiers are dieing every day... doesn't look like Iraqis want us there.
I think, you are programed by the right wing media to think what neo-nazi conservatives want YOU to think... you dont' think for your self... you just follow along like the rest of the sheep.
Baa baaaa baaa :rofl
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Originally posted by Mighty1
Why look at other countries if you are not going to use them as a guide?
I see it like a PC programmer looking at a Mac programmer’s code to decide how to write a game
sorry..and how is that bad again? Does it taint the game or something?
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Originally posted by Dune
Sikboy is right in that decisions from different states and different Federal circuits are not binding on each other. However, both the states and Federal circuits can look at others to help them make their own decisions becuase the basis for all of their laws is the Consitution.
While the utility of courts using outside opinions to support their own is my whole point, I dissagree that this utility arises from the constitution.
-Sik
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But you're right, If you're talking about the federal system 9th circuit descisions are non-bindinig to 5th Circuit courts, unless they've been appealed to the supreme court.
I mean, it's pretty much the same situation, but I found it more compelling from the POV of State Courts, since we're talking about considering Alien legal rulings.
but it's still not a clean analogy. the fact that if your state court ruling varies widely from simular rulings in another state, it will make apealing to a higher court much easier. all cases in this country (on apeal) will eventually wind up before the same court, making decisions in other courts relevant if not binding.
the day you can apeal a supream court verdict to a court of international law it will then become relevent for judges to consider rulings from other countries while interpreting american law.
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Originally posted by capt. apathy
but it's still not a clean analogy. the fact that if your state court ruling varies widely from simular rulings in another state, it will make apealing to a higher court much easier. all cases in this country (on apeal) will eventually wind up before the same court, making decisions in other courts relevant if not binding.
If the opinion in question has not been appealed to the supreme court (which, had it been that would make it binding, and tje SC case would be cited as manditory authority), the relationship of the courts to the supreme court is irrelevant. I don't see how the fact that it could be appealed has anything to do with it.
-Sik
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How could it not?
While each state must decide based on its own laws, these laws must still be based on the Constitution. If they violate it, they are unconstitutional and thrown out. And the final voice on what the Constitution means, or put better, how it should be interpreted is the Supreme Court.
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So should O'conner rule against gun ownership because the UK has a gun ban.
thats the problem. If she is looking at laws that we didn't vote on, through the legal process of congress and senate the she is making laws.
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^^^Completely clueless.^^^
yowser