The Instigator
RoyLatham
Pro (for)
Winning
23 Points
The Contender
Ragnar_Rahl
Con (against)
Losing
0 Points

The U.S. Constitution Should be Amended to Limit Judicial Activism

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Post Voting Period
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after 4 votes the winner is...
RoyLatham
Voting Style: Open Point System: 7 Point
Started: 11/10/2008 Category: Politics
Updated: 8 years ago Status: Post Voting Period
Viewed: 1,888 times Debate No: 5937
Debate Rounds (3)
Comments (11)
Votes (4)

 

RoyLatham

Pro

Currently, the Constitution does not specify how disputes over Constitutional rights should be resolved. It neither states the criteria for resolving them or the mechanism for the resolution. By tradition the Supreme Court resolves the issues using whatever criteria pleases them. The point of having a written constitution is to have laws prevail over men, so the ambiguity over the criteria and method is a serious defect that should be remedied.

The Constitution should be amended to establish that (1) the Supreme Court shall have the authority to rule whether or not a law is valid with respect to rights guaranteed by the Constitution, (2) the criteria to be used in the determination by the Court is the Constitution as written and amended as intended by the authors of the Constitution and amendments, and (3) that the Congress may, by two-thirds vote, overrule Court decisions with respect to issues of intent, the nature of such issues being determined by Congress. The proposed amendment would have no effect on the Court's role in adjudicating issues of law unrelated to the Constitution, such issues being the great majority of the Court's business.

Under present tradition the Supreme Court has declared that abortion is guaranteed by a right to privacy that is not spelled out in the Constitution. A future Court might ban abortion on the grounds that a right to life is guaranteed by the Constitution. In fact there is nothing in the documents describing the intent of the Constitution that suggests that abortion was considered one way or the other. It should therefore be left as a matter of law. The proposed amendment would restore that to being a legislative matter.

The abortion issue is only one example, and is not necessarily the most important one. There are issues related to the death penalty, property rights, and personal freedoms where judicial activism has replaced democracy with the imperial rule of the Court. Arguments in favor of judicial activism must justify the principle of benevolent despotism over democracy, and why it can be trusted to always be benevolent.

Currently the power of the Court is checked only by the amendment process, which is so onerous as to be ineffective. The proposed amendment would provide a less onerous check on Court power, although the two-thirds majority would still leave the court with substantial independence.

In the democracies of other countries, rights are preserved under the sole responsibility of the legislatures of those countries. This has worked well, and no country has decided it needs an unelected body to supersede the legislature. The propose amendment does not overthrow the American tradition of Constitutional government, but instead restores a more democratic tradition mechanism for interpretation of the Constitution.

Strict constructionism versus judicial activism is often framed as a conservative versus liberal issue, because in recent years the activism has been liberal. However, liberal jurists such as Lawrence Tribe have opposed judicial activism on the grounds that written law, democratically adopted, should prevail. The proposed amendment would re-establish the primacy of written law.

[aaronr8684 is barred from accepting this challenge]
Ragnar_Rahl

Con

The Supreme Court is little enough of a check on Congressional power already, considering how the Senate has the sole ability to approve candidates. All they have to do is hold their majority until a few old justices die, and then they can hold everything up until a nominee comes before them they approve of. Adding a 2/3 majority clause would just weaken the brakes on mob rule even further.

"The point of having a written constitution is to have laws prevail over men,"

In which case the constitution is pointless. Men make the laws, it so happens, meaning they are the victor in any such conflict once enough of them mob up. If the Constitution is pointless, it follows the resolution's recommendation is of no benefit.

"
Under present tradition the Supreme Court has declared that abortion is guaranteed by a right to privacy that is not spelled out in the Constitution. A future Court might ban abortion on the grounds that a right to life is guaranteed by the Constitution."
Where does the constitition guarantee a right to life for something that isn't even human yet? Homo sapien, perhaps, but human?

It does, however, guarantee that no citizen can be deprived of property (including their womb) without due process. It also guarantees that no person shall be forced to quarter soldiers in their home in peacetime, let alone in their womb- if it disallows the forced quartering of fully grown soldiers, what follows logically when you shift the balance even further by offering up with something with a cognitive ability less than a rat to force someone to quarter?

"Arguments in favor of judicial activism must justify the principle of benevolent despotism over democracy, and why it can be trusted to always be benevolent."

You do not have to defend the benevolence of something when the alternative is so clearly not benevolent. Mob rule, i.e. electoral democracies, left unchecked, spawned Hitler. In more benign times, still, every election is some sort of advance auction in stolen goods-- just look at the sickening sight of presidential or congressional candidates in even America, promising so many people stolen goods such as welfare, Social Security, nationalized health care, corporate subsidies... Heck, half the time they usually get away with (get elected by) not even telling you WHO they are going to steal it from!

A few despots putting the brakes on this thieving mob, regardless of their motives, seems to be quite in order. Would you rather have an evil unopposed to deal with, or an evil splintered into two factions that fight each other, so they don't have as much time to deal with you? Benevolence from such a despot would be just a bonus, not needed to hope for their arrival.

"
In the democracies of other countries, rights are preserved under the sole responsibility of the legislatures of those countries."
Please name one democracy in the history of this earth where human rights have stopped a government from anything it wanted badly enough? Every government I've noticed is in the habit of stealing from whichever citizens don't matter according to the electoral math.

"The propose amendment does not overthrow the American tradition of Constitutional government, but instead restores a more democratic tradition mechanism for interpretation of the Constitution."

The constitution, as ineffective a barrier as it is, was meant to put a STOP to democracy. It cannot be honored by democracy except in the breach.
Debate Round No. 1
RoyLatham

Pro

1. Con equates democracy with mob rule. Thus, for example, France, the United kingdom, and Japan, which have no imperial Supreme Courts, are all ruled by mobs. Presumably, Con should be able to show that the mobs have trashed all human rights in those countries, yet Con provided no evidence that has happened. The alternative to "mob rule" is imperial rule, wherein the despot is immune to the will of the claimed "mob." Thus, we should look to North Korea and Zimbabwe as bastions of human rights. Con provided no evidence that a single place on earth under any form of imperial rule has accomplish what Con claims. Therefore the argument fails.

The U.S. works with a system of checks and balances design to keep any one branch of government from ruling without limits. The defect in the system is that the Supreme Court has acquired, through tradition, power that is substantially unchecked. Most democracies resolve human rights issues with a simple majority of the legislature, and that works adequately. Requiring a two-thirds majority is not a strong check, because it is and always has been difficult to get two-thirds concurrence on any issue. Nonetheless, the check stands as a warning to the Court that their power is limited, and that will limit the imperial hubris that motivates some decisions.

2. Con argues that men make laws so therefore there is no difference between rule of law and rule by men. Rule by law is in fact distinguished by the laws being debated publicly, revealed so that citizens know what the laws are, and applied by judges while "rule by men" means that what is legal and illegal is not subject to democratic debate and may be revealed at any time without warning without check. Con's argument applies to imperial rule in that having the monarch or dictator make and reveal is the same as a democracy because the monarch is a "man" and the legislators are also "men." The distinction is not at that level, the distinction is in the process of deliberation, codification, and judicial application of the laws.

3. Con argues that abortion rights are clearly specified in the Constitution by the requirement for "due process" in taking property and under the prohibition of "forced quartering of soldiers." "Due process" simply means that the taking of property must be done in accordance with some law. The Supreme Court has ruled that it is constitutional to seize a person's home for the purpose of reselling it to a developer to increase the tax base, so long as there is a law that permits it. Therefore, the property rights guarantee in the constitution is extremely weak and clearly does not apply to abortion. For the "forced quartering of soldiers" to apply, Con must prove that (a) the fetus is a soldier, and (b) the government forced the fetus into the womb without the consent of the mother. I await that proof.

The Supreme court is already on record as refuting Con's arguments, having ruled that the basis of Roe v. Wade was an unarticulated right of privacy, not seizure of property or quartering soldiers. Con claims that the Courts ruling ought to unchallengeable, therefore he has implicitly ceded that his points are invalid.

Con's argument is beside the point of the debate. I am pro-choice. The difference with respect to this debate is that I want the laws to be made democratically and not by imperial fiat. I am confident that the democratic process will produce pro-choice laws. Con wrongly assumes that the benevolent despotism will always favor his position, but he has offered no argument that such will happen. The Constitution states explicitly, in the Fourteenth Amendment, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Separately, the Supreme Court has ruled that imposing a death penalty for any crime other than murder is unconstitutional. Putting the two together, no law permitting abortion is Constitutional. No, I don't think that is good argument, for the reason that abortion was never contemplated in the Constitution. However, if the unchecked supremacy or the Court is allowed, it would be a trivial matter for a new Court to make such a ruling based upon the explicit language and past precedent, and there is nothing to stop them from doing that.

The proposed amendment would provide the needed check.

4. Con claims "You do not have to defend the benevolence of something when the alternative is so clearly not benevolent. Mob rule, i.e. electoral democracies, left unchecked, spawned Hitler." What Con desires is precisely unchecked rule. He supposes that the court having unchecked power to invent anything it wishes and make it law is good because he relies upon the Court to always rule as Con thinks appropriate. I agree that democracy should not be unchecked, however, imperial rule should also not be unchecked, which is why the proposed amendment restores the system of checks and balances. It does give the final word on certain issues to the legislature, but with far greater safeguards than in any other democracy. Con is implying by his logic that a Hitler would be okay provided he ruled through a court rather than through the Executive branch, because, for reasons never expounded, judges always do good and therefore can be trusted with arbitrary and unchecked power.

5. Con asks, "Would you rather have an evil unopposed to deal with, or an evil splintered into two factions that fight each other, so they don't have as much time to deal with you? Benevolence from such a despot would be just a bonus, not needed to hope for their arrival.[?]" The question poses a false dichotomy, that evil will either be unopposed or will be opposed by a despot. The dichotomy is false because there is ample evidence that democracies will oppose evil. In fact, despots universally defend the right of despotic rule, which is say they defend evil rather than oppose it. Look, for example, at how the non-democratic nations in the U.N. vote on issues that would undermine dictatorships. A standard mechanism used by despots to keep in power is that only their absolute rule will keep the country safe. That is used by Kim to justify his rule in North Korea, for example.

6. Con claims, "The constitution, as ineffective a barrier as it is, was meant to put a STOP to democracy. It cannot be honored by democracy except in the breach." The claim is false, because the Constitution explicitly requires democratic elections. That is requiring democracy, not putting a stop to it. It is true that the Constitution establishes a republic, which is one check on democracy, and also establishes three branches of government with a system of checks and balances. The system of checks and balances is designed to prevent a single branch of government from gaining despotic powers. That system has been undermined by the Supreme Court seizing the ability to legislate, with no effective check on that power. Nothing in the Constitution suggests that use of judicial power.

The proposed amendment does no more than re-establish a proper system of checks and balances. Con pointed out the efficiency of despotic rule in comparison to the democratic system of checks and balances. I agree that there is a whole lot less debate in a dictatorship. King George was rarely delayed by debate. However, the American Revolution the choice in favor of tolerating debate, and we should stick with that now.
Ragnar_Rahl

Con

". Con equates democracy with mob rule. Thus, for example, France, the United kingdom, and Japan, which have no imperial Supreme Courts, are all ruled by mobs. Presumably, Con should be able to show that the mobs have trashed all human rights in those countries, yet Con provided no evidence that has happened."

Japan is a police state, with insanely strict prisons (http://www.amnesty.org...), including for victimless crimes.

France is well known to have neither freedom of speech nor freedom of religion.

The UK has more surveillance per capita than anywhere else in the world, which wouldn't be the case if there weren't a lot of things to keep track of.

All three have taxes, which proves they have no respect for the rights of liberty, or property.

"The alternative to "mob rule" is imperial rule, wherein the despot is immune to the will of the claimed "mob." Thus, we should look to North Korea and Zimbabwe as bastions of human rights."

No, because the Supreme Court is not an omnipotent despot. It is a very weak despot which serves as a barrier to democracies. It can be compared to only itself- sadly, the freest country of the world, the United States. The United States, not North Korea or Zimbabwe, is the result of this particular sort of weak despot.

Furthermore, Zimbabwe holds elections.

and North Korea has such extensive control over it's civlilization the mob is brainwashed to the extent that elections would be redundant.

"
The U.S. works with a system of checks and balances design to keep any one branch of government from ruling without limits. The defect in the system is that the Supreme Court has acquired, through tradition, power that is substantially unchecked."
How exactly is it unchecked, when the other branches of government ignore what it says half the time anyway, and appoint it?

"Most democracies resolve human rights issues with a simple majority of the legislature, and that works adequately"

No, because no human right that the majority wants is what needs protection. It's only the ones that the majority doesn't want that are threatened. A "simple majority" does absolutely nothing to protect rights that a despot wouldn't have to anyway.

"
2. Con argues that men make laws so therefore there is no difference between rule of law and rule by men. Rule by law is in fact distinguished by the laws being debated publicly, revealed so that citizens know what the laws are, and applied by judges while "rule by men" means that what is legal and illegal is not subject to democratic debate and may be revealed at any time without warning without check."

Democracy means that the majority can reveal whatever it wants to it's slaves the minority without warning without check, as proved by the massive amounts of tax laws it imposes on those slaves every year in every nation.

"Con's argument applies to imperial rule in that having the monarch or dictator make and reveal is the same as a democracy because the monarch is a "man" and the legislators are also "men." The distinction is not at that level, the distinction is in the process of deliberation, codification, and judicial application of the laws."

Deliberation, codification, and judicial application are all human functions, undertaken by despots just as much as legislatures, the difference is of course that the deliberations are smaller so you can hear something other than a screaming mob.

"
3. Con argues that abortion rights are clearly specified in the Constitution by the requirement for "due process" in taking property and under the prohibition of "forced quartering of soldiers." "Due process" simply means that the taking of property must be done in accordance with some law."

No, because due process contradicts several laws and overturns them. It refers to a specific procedure to find what people are guilty of.

"The Supreme Court has ruled that it is constitutional to seize a person's home for the purpose of reselling it to a developer to increase the tax base"

This is because it is a weak check, appointed by those (the majority) who wanted it to be constitutional to do so. Making it weaker won't help matters.

"Therefore, the property rights guarantee in the constitution is extremely weak and clearly does not apply to abortion. "

Just because the Supreme Court is too weak to uphold the rule of logic is not sufficient to establish the truth of it's statements, further, the womb is presumably MORE fundamental property than a house.

"Con must prove that (a) the fetus is a soldier, and (b) the government forced the fetus into the womb without the consent of the mother."
The soldier is one of the types of things that is among the highest in compelling government interests-- if the government interest isn't enough to forcibly house a soldier, how can it be for a fetus?
Further, it would be rather silly to say that inviting a soldier into your living room for tea removed the forcible quality of government mandates for housing him at night... likewise with the distinction between genital penetration and pregnancy.

"
The Supreme court is already on record as refuting Con's arguments, having ruled that the basis of Roe v. Wade was an unarticulated right of privacy, not seizure of property or quartering soldiers. Con claims that the Courts ruling ought to unchallengeable"

i never said it should be unchallengable. Simply that it did more good than harm. Bad reasoning in support of justice is superior to the unjust enslavement of women (ah yes, I forgot the forced labor clause of the constitution, which is far more unequivocal!), which would result without it (at the time of Roe V wade, it is highly doubtful that 2/3 could not be summoned up for anti-abortion laws)
Further, I think you missed the ninth amendment, that means enumeration of some rights is not a disparagement of others- likewise, justification of abortion by some rights is not a disparagement of justification by others.

"However, if the unchecked supremacy or the Court is allowed, it would be a trivial matter for a new Court to make such a ruling based upon the explicit language and past precedent, and there is nothing to stop them from doing that."
There is nothing to stop Congress from doing it either on your model...

"What Con desires is precisely unchecked rule. He supposes that the court having unchecked power to invent anything it wishes and make it law is good because he relies upon the Court to always rule as Con thinks appropriate."

You didn't notice the source of the Court's appointment. That's an important check.

"Con is implying by his logic that a Hitler would be okay provided he ruled through a court rather than through the Executive branch"

not really. But Hitler tossing aside a few legislature's verdicts, without the power to make new ones, would be rather helpful :D.
Judges do not have the power to impose and enforce new laws, all they can do is prevent the government from doing certain things, according to the constitution. They are a roadblock, not a tyrant in themselves.

"The dichotomy is false because there is ample evidence that democracies will oppose evil"

No, there is not ample evidence that any country has tossed aside taxation, sorry.

"The claim is false, because the Constitution explicitly requires democratic elections."

No, it requires elections by an electoral college, which was meant to be a state legislature. Convoluted math, meant to frustrate demagogues.

"That system has been undermined by the Supreme Court seizing the ability to legislate, with no effective check on that power. "

Please show me a LAW made by the Supreme court, a law not about what the government can do, but about what private individuals can do. Can't, the Supreme Court has no power except that to get in

"Con pointed out the efficiency of despotic rule in comparison to th
Debate Round No. 2
RoyLatham

Pro

1. Con equates democracy with mob rule. I challenged Con to prove that human rights are trashed in democracies while being elevated in dictatorships, monarchies and other forms of imperial rule. Con responded that (a) prisons are too harsh in Japan, (b) freedom of speech is limited in France, and (c) the UK has considerable surveillance of public spaces. He further noted that all three have taxes. Con makes the error of supposing that if Japan has harsh prisons or France has some limitations of human rights that it proves overall that there is mob rule and that those democratic countries have no better overall record of human rights than North Korea or Zimbabwe or any other fascist state. I grant that no country has a perfect embodiment of human rights, at least not as I conceive of them. However, that none are perfect does not make them all equal. Con must prove that, overall, unchecked power favors human rights by contravening democracy.

His examples of surveillance of public spaces is erroneous, because there is no human right that protects against being observed in a public space. If there were such a right, no crime committed in public could be prosecuted using witnesses to the crime. The argument that imposing taxes is a violation of human rights is novel. Con recognizes that there is no possibility of having such a right recognized democratically, so the only change of getting what he wants is through a Court edict. The proposed amendment is designed to prevent such extreme aberrations.

Con argues that the Supreme Court is not omnipotent, because is a weak despot. It is not necessary to be an absolute monarch to be a monarch, or an absolute despot to be a despot. The question is whether having substantially unchecked power within the domain of the Supreme Court is the best way to determine and enforce human rights. Con's argument is non-responsive.

3. Con asks, "How exactly is it unchecked, when the other branches of government ignore what it says half the time anyway, and appoint it?" Con offered no evidence that Court decisions are ignored "half the time." If that is true, con should be able to produce a substantial list of Court decisions that were ignored. For example, he should be able to prove that Roe v. Wade was ignored, or to something else of that importance. Clearly, important Court decisions are obeyed. Having the Court appointed does not provide a check on its power. It is of some help in getting despots who are more benevolent then they might be. However, after a judge is appointed, the judge can do as he or she pleases. Reagan appointed judges who he thought would rule as strict constructionists, but who turned out to be judicial activists. What happens is that the "power corrupts," some appointees cannot resist doing what they believe to be good, knowing it cannot be checked.

4. I claimed that democracies do an adequate job of protecting human rights. Con replies, "No, because no human right that the majority wants is what needs protection. It's only the ones that the majority doesn't want that are threatened. A "simple majority" does absolutely nothing to protect rights that a despot wouldn't have to anyway." This repeats the logical error of supposing that because that democracies do not do a perfect job of protecting human rights, that they are therefore no better that dictatorships. He states directly that dictators would grant all the human rights that a majority would want. So, for example, according to Con, North Korea and Cuba should have all the rights of free speech given in Japan, France, or the U.K., which he proclaims to be under mob rule. This is clearly false.

The way that a written constitution improves over a simple legislative majority is that the Constitution determines certain rights in sober moments when rights issues are considered with great care, are voted into effect by two-thirds majorities, and thereafter can only be changed a two-thirds majority. The proposed amendment does nothing to change that system. The Bill of Rights remains in effect and it remains enforceable by the Court. What is changed it that new alleged rights cannot be invented by the whim of the Court. New rights must go through the designed process of public deliberation. This reflects Con's misunderstanding of the meaning of the rule of law.

5. Con argues, "Just because the Supreme Court is too weak to uphold the rule of logic is not sufficient to establish the truth of it's statements, further, the womb is presumably MORE fundamental property than a house." There is no weakness in the Court that limits their ruling. If the court wanted to make the fanciful claim that abortion is just like quartering soldiers, they could do so. Con's real objection is that the Court did not use it's omnipotent power as he wished they would. That is precisely my argument against the Court having such power. The Court could at any time find the explicit right to life granted by the 14th Amendment to prohibit abortion. The only guard against such a ruling is to restrict the Court to enforcing existing rights established democratically.

6. Con never argues that the fetus is a soldier or that the government forced the fetus into the womb. He argues that if one understands rights the way that he interprets them, then something that isn't in the Constitution, but which he thinks ought to be there, could be invented and enforced. If a court could use the logic that makes the fetus "like a soldier" then the Court could justify virtually anything with strained logic. The "general welfare" clause could mandate anything desired. The proposed amendment would effectively prevent such nonsensical arguments becoming Court mandates.

7. Con argues, "Bad reasoning in support of justice is superior to the unjust enslavement of women." (ah yes, I forgot the forced labor clause of the constitution, which is far more unequivocal!), which would result without it (at the time of Roe V wade, it is highly doubtful that 2/3 could not be summoned up for anti-abortion laws)." In other words, the end justifies the means. But that is only true when the end comes out the way you want. Con seems to have granted my argument that the Court could chose to use its unchecked power to ban abortion if it wished to. If the proposed amendment were passed, the decision would be left to legislative majorities state-by-state. I have no doubt that laws would be passed that would permit abortion for most states immediately, and that other states would eventually fall in line. At one time permitting divorce was highly controversial, but the states changed one by one. Supporters of any position they belief just and logically sound should have confidence that they can prevail.

8. Con argues, "I think you missed the ninth amendment, that means enumeration of some rights is not a disparagement of others- likewise, justification of abortion by some rights is not a disparagement of justification by others." The Ninth Amendment could be used to find any supposed right., just as the general welfare clause can be used to justify anything deemed good. However, the Ninth Amendment has never been used by the Court to mean anything other than that the States can establish additional rights. The proposed amendment preserves that interpretation.

Con argues that judicial activism will provide what he wants: a guarantee of abortion rights and a declaration that taxes are violation of basic rights. I'm not willing to leave either issue to anything other than democratic processes. While I grant democracy is imperfect, it is a much better system.
Ragnar_Rahl

Con

:Con makes the error of supposing that if Japan has harsh prisons or France has some limitations of human rights that it proves overall that there is mob rule and that those democratic countries have no better overall record of human rights than North Korea or Zimbabwe or any other fascist state.

First, keep in mind the mention of the harshness of prisons was in the context of victimless crimes :D.

Second, we are not comparing these countries to fascist states, which happen to frequently be democratic. We are comparing them to the United States. The United States has much fuller free speech rights, and so far a freer economy, than any of the countries under mob rule. An unchecked democracy is the only criterion of "mob rule," i.e., absolute rule by the majority. In theory, a mob-ruled country could exist that respected rights, in practice, they tend toward doing so less than countries with a check on democracy.

"However, that none are perfect does not make them all equal. Con must prove that, overall, unchecked power favors human rights by contravening democracy.
"

You are misframing the issue. The Court is not unchecked, as I have repeatedly demonstrated, it's members are chosen by the elected branches of government. It can only slow things by declaring them unconstitutional, if the majority doesn't have a double-take at this, and have it's position leavened with time once out of the passion of immediately passing it, it still happens to rule. The most flagrant violations of human rights tend to be passed quickly in the passion of a revolution, including those such as Zimbabwe and North Korea. They are signs of what happens when there are no courts able to put the brakes on, not signs of what happens when there are.

Statistically speaking, of course, since unchecked rule need be but one person, and democracy needs to be many, and most people favor some violations of human rights, a government that respects them fully is all but impossible without a dictator, but again, a dictator is not at issue, a democracy with strong brakes versus a democracy with weak ones is.

:His examples of surveillance of public spaces is erroneous, because there is no human right that protects against being observed in a public space.

I did not argue there was. But considering the violations of actual rights by a government, increase of surveillance means increase in the effectiveness of violating such rights. In a perfect government, surveillance would be of no concern, in an imperfect government, it is of concern.

"The argument that imposing taxes is a violation of human rights is novel. Con recognizes that there is no possibility of having such a right recognized democratically, so the only change of getting what he wants is through a Court edict."

I am not operating under the delusion that the Court will recognize the right to property. I was simply offering it as the egregious offense for which all present governments must answer.

"Con argues that the Supreme Court is not omnipotent, because is a weak despot. It is not necessary to be an absolute monarch to be a monarch, or an absolute despot to be a despot. The question is whether having substantially unchecked power within the domain of the Supreme Court is the best way to determine and enforce human rights."

It is not "unchecked." We went over this.

"Con offered no evidence that Court decisions are ignored "half the time." "

It's an expression. A figure of speech.

"that is true, con should be able to produce a substantial list of Court decisions that were ignored. For example, he should be able to prove that Roe v. Wade was ignored"

See: South Dakota's laws.

"
4. I claimed that democracies do an adequate job of protecting human rights. Con replies, "No, because no human right that the majority wants is what needs protection. It's only the ones that the majority doesn't want that are threatened. A "simple majority" does absolutely nothing to protect rights that a despot wouldn't have to anyway." This repeats the logical error of supposing that because that democracies do not do a perfect job of protecting human rights, that they are therefore no better that dictatorships. He states directly that dictators would grant all the human rights that a majority would want. So, for example, according to Con, North Korea and Cuba should have all the rights of free speech given in Japan, France, or the U.K., which he proclaims to be under mob rule. This is clearly false."

Majorities in North Korea and Cuba are different from those in Japan, France, or the UK... but none of the above recognizes a "right" to free speech. So a bad example for two different reasons.

A despot in FRANCE would have to recognize rights to the same extent at least that a democracy does. Cuba and North Korea's rights systems would be similarly unaltered if they were to switch to having elections. As an example, elections are being phased in for certain positions in China, the conduct of those positions however has shown no evidence of change.

"
The way that a written constitution improves over a simple legislative majority is that the Constitution determines certain rights in sober moments when rights issues are considered with great care, are voted into effect by two-thirds majorities, and thereafter can only be changed a two-thirds majority. The proposed amendment does nothing to change that system."
Yes, it does. It removes the fact that that two-thirds majority must also be attended by a three-quarter majority of states. This slows the ability of an urban majority, say, even a 2/3 one, which has not formed yet but may one day, from disarming a rural minority, from leaving our populace no further means of resisting future expansions of oppression.

"What is changed it that new alleged rights cannot be invented by the whim of the Court."

As far as I can tell no rights have been invented by the whim of the court. The "Right to privacy" is derived as a logical precursor of the Fourth Amendment, for example.

"
5. Con argues, "Just because the Supreme Court is too weak to uphold the rule of logic is not sufficient to establish the truth of it's statements, further, the womb is presumably MORE fundamental property than a house." There is no weakness in the Court that limits their ruling."

The fact that the court is appointed by elected officials institutionally weakens it as a check.

". If the court wanted to make the fanciful claim that abortion is just like quartering soldiers, they could do so."
There is nothing fanciful about it, simply controversial (and I think you meant OUTLAWING abortion is just like quartering soldiers). And that is precisely why justices who wanted to do that would not end up on the Court. As an institution, the Court requires some previous majority to be able to overturn the current one that is inflamed in the heat of the moment. This prevents it from checking anything by any arguments save those which have at some point been sponsored implicitly by some majority.

"Con's real objection is that the Court did not use it's omnipotent power as he wished they would. "

Omnipotent? Nine old fogies who can be replaced at the whim of elected officials are not omnipotent.

"The Court could at any time find the explicit right to life granted by the 14th Amendment to prohibit abortion."

No, it could not. It could, at worst, overturn Roe V. Wade. It is incapable of independently prohibiting actions of private citizens, it is solely a check on the government. If it overturned Roe V. Wade, things would be no worse than they would be with no Supreme Court. It can strike down laws, not make new ones, that is it's power, and why I support it... the vast majority of laws out there ought be struck down. This fact, of course, seems to address the remainder of your argument.
Debate Round No. 3
11 comments have been posted on this debate. Showing 1 through 10 records.
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
I am, opposed, of course, to democratic societies, and defacing any government properties not paid for by taxes. And it's not a matter of "should have the right," they simply do-- rights are inherent not granted :d.

So, a more accurate resolution would be "Citizens have the right to deface what is paid for by taxes, when said taxes are not being phased out."
Posted by RoyLatham 8 years ago
RoyLatham
Ragnar, Would you like to debate the topic, "Resolved: In a democracy, every citizen should have the right to deface government property and disrupt all meetings held on government property?" I don't want to state your beliefs incorrectly, so it would be better if you proposed the exact wording.
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
Government property, which I know the toilet was and the context implies the shrine was, is subject to freedom of speech. Perhaps if the toilet wasn't paid for by taxes I'd be more receptive to removing permanent graffita, as it stands I am not.

And it's not a distraction from the topic when you've just stated that whether it gets implemented is dependent on the resolution.
Posted by RoyLatham 8 years ago
RoyLatham
You claim that there is no free speech because protestors are not allowed to invade a Shrine and disrupt the proceedings, and because people are not allowed to cover a public restroom with graffiti. do you really believe that invading shrines and trashing public spaces should be allowed as "free speech"? If so, I can see why you don't want anything voted upon.

Speech is allowed on the public streets, as was noted in the article you cited. During elections, partisans roam the cities using high powered sound trucks to deliver their messages. It would be reasonable to limit the decibel levels, but if there is any limit it isn't apparent. There are large rallys with speeches outside train stations. People are endlessly passing out fliers on city streets.

Regarding the debate, I'm willing to let people read it and decide for themselves what was claimed and not claimed. Regarding the notion of taxation as a violation of human rights, it was tempting to go off on a tangent and refute such a bizarre claim. However, I avoided that as being a distraction from the topic. It served better to point out that such a "novel" idea could only be implemented as an invention from an unchecked Court, which is why there ought to a democratic check.
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
http://blog.japundit.com...

Free speech in japan? Not on what is evidently "public property," which doesn't leave much :d.

And it (any "right" in the government parlance) doesn't do a whole lot of good when they can just indefinitely apply for 3-week detention periods without charging you with anything, and those applications are as a matter of policy almost always granted.
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
Rather, more accurately, it is a temporary despot, a despot with limited powers, a despot only for lack of a better term rather than a full on, all-powerful dictator :D
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
You'll note that contrary to your repeated claim (a la "The true believer just recites his belief over and over" ), I was not arguing that a despot would ensure anything. I was arguing that the Supreme Court as it stands is not precisely a despot, simply a brake. So who didn't follow whose argument?
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
"However, you offered the notion that a pure dictatorship"

No, I didn't, actually, until the third round, and that only with a specific kind of dictator :d.

"I said clearly that a republic, with a written Constitution and a system of checks and balances is better than a democracy with fewer checks."
Which contradicts your resolution, because you are weakening a check.

"Trying to pretend they are in the same category as North Korea or Cuba is ridiculous."

I didn't state they were. You seem to be saying I said a lot of things I didn't say.

"During the debate, you called up as fact a number of unsupported assumptions, like the assumption that there is right not to pay taxes."

You'll note you did not contest it, nor ask for support. You simply declared it novel.

"
On the other hand, in terms of considering the real issues of the debate it would be more interesting to most people, I think, if the conventional liberal arguments were used."

If you are concerned about that, you should specify that your opponent be a "conventional liberal."

"Those arguments revolve around claiming that selection process ensures the despotism will always be benevolent."

That would just be silly, a la Cuba and North Korea.
Posted by RoyLatham 8 years ago
RoyLatham
Ragnar, You apparently did not follow my argument. I said clearly that a republic, with a written Constitution and a system of checks and balances is better than a democracy with fewer checks. However, you offered the notion that a pure dictatorship was better than democracy, because a dictator would not succumb to mob rule. That notion is ridiculous, of course, but in a debate it doesn't do to just call a ridiculous idea ridiculous. So I provided counter evidence that even democracy without checks and balances was better than dictatorship. I would rather live in Japan, France, or the U.K. than any dictatorship.

Japan is an interesting case. Their prisons are indeed harsh, as you say. Also, there is no such thing as Miranda rights. However, they have greater protections on private property than the U.S. It is really, really difficult to take a farmer's land or a person's house, even for the purposes of building a road or an airport. Also, prostitution is de facto legal, even though they try to shut it down locally when hosting international events and such. There is free speech, freedom of religion, and so forth. Trying to pretend they are in the same category as North Korea or Cuba is ridiculous.

During the debate, you called up as fact a number of unsupported assumptions, like the assumption that there is right not to pay taxes. That makes for an interesting debate in one sense. It is like debating a person who believes in Biblical revelations and casually cites them as facts. The true believer just recites his belief over and over, and it is a real challenge to get the debate back to a logical framework.

On the other hand, in terms of considering the real issues of the debate it would be more interesting to most people, I think, if the conventional liberal arguments were used. Those arguments revolve around claiming that selection process ensures the despotism will always be benevolent.
Posted by Ragnar_Rahl 8 years ago
Ragnar_Rahl
""I'm not willing to leave either issue to anything other than democratic processes. While I grant democracy is imperfect, it is a much better system."

If you truly believed that, you would live in the French, British, or Japanese democracies which you so laud.
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