Redstate

nothing more needs said that if its Alito, great. GREAT!!!!!!

My sources tell me that Luttig can be an elitist "ass" (quoting one of my more reliable source).  Another it more softly (paraphrase): "He has little patience for those who he deems less intellectually rigorous than himself."




I have conflicting reports on his ability to keep it under control. Some say that he's smart enough to do so, but others said that he couldn't even keep it under wraps in his meeting with W.  Having not only heard many stories over the years, but actually talking to the man (W), I have no clue how you can't get along with him for a short meeting on friendly terms.




If this is true, I would worry about him having the problem of not only being the smartest person in the room at the hearings, but not hesitating to point that out quite emphatically.




Having said that, I would be quite ecstatic with his appointment.  My sense of how the President evaluates people, however, makes me doubt it's a serious possibility if my sources are right.

there are several foks I would be happy with, some more than others, but Alito seems like a good choice.

I suspect Alito would be received better by the dems than Luttig, although at this point I think the dems are prepared to make an issue of any nominee-just because Bush appointed them.

I can live with Alito or Luttig, but I am hearing from friends do not count out JRB yet. The setting for the President would be perfect to nominate her on the backdrop of honoring Rosa Parks. We need JRB to reverse and correct some of the harm done to our country by Ruth Bader Ginsberg and Sandra Day O'Connor. I not saying give Blacks an olive branch, but show the world that conservatism does not equal racism. Liberals are the ones that created the problems in the black community, creating a culture of expecting entitlements. Rosa Parks did something for her self, she did sit around and wait for a government handout. I would love to see liberal dems in the Senate publicly try to destroy JRB while claiming to support the blacks. It is a fight worth invoking the nuclear option. I feel that it might even give us more that 11% of their vote in 2008. The republican party has to reach out to minorities, but only in a way that can help them, not cripple them like liberals.

Emilio Garza and Michael Luttig would've been my first two preferences, but whatever.

Where can I get more on Alito's background, etc?

Wikipedia?

I can live with Alito or Luttig, but I am hearing from friends do not count out JRB yet. The setting for the President would be perfect to nominate her on the backdrop of honoring Rosa Parks. We need JRB to reverse and correct some of the harm done to our country by Ruth Bader Ginsberg and Sandra Day O'Connor. I'm not saying give Blacks an olive branch, but show the world that conservatism does not equal racism. Liberals are the ones that created the problems in the black community, creating a culture of expecting entitlements. Rosa Parks did something for her self, she did sit around and wait for a government handout. I would love to see liberal dems in the Senate publicly try to destroy JRB while claiming to support the blacks. It is a fight worth invoking the nuclear option. I feel that it might even give us more that 11% of their vote in 2008. The republican party has to reach out to minorities, but only in a way that can help them, not cripple them like liberals have done in the Past

Has a bunch on all the candidates.

in posting Judge Alito's picture, we may need to pray that Judge Luttig 'grows' in the same manner as Justice Thomas.

I think Alito will be filibustered.  Letting him pass would be bad politics.  No upside for most Dem Senators in playing ball with Bush.  Plus, making an issue of the SCOTUS appointment will probably seal Chafee's doom in Rhode Island.

Has Arlen been reminded that he was not elected President, is not a constitutional scholar, should stay away from super sized fries, starie decisis etc.,  and that talking about abortion moves the message away from judicial conservatism?

Luttig is the man trusted by Scalia, Thomas and the late CJOTUS to supply the elite conservative clerks to them every year -- every single one of his clerks goes onto the Supremes.  If they trust him, why wouldn't the President?

Someone's trying to muddy the waters.

You say it's more than likely NOT going to be Alito.  Then you talk about the "negatives" of Luttig and say it'll be Alito.  Huh??

But I wouldn't bet on it.  I think Luttig's main downside is that he may not be necessarily the best guy to go to war with, in terms of the politics of the nomination and how he'll play on TV.  But I can't see grounds to doubt that he'd be a great Justice.

He said "more like than not going to be Alito," i.e. greater than 50% chance it will be Alito.

But Alito isn't bad (based on what I currently know).  And Kozinski, by all reports, is not on the shortlist.

Make the price of a fillibuster 300% higher.

I had to re-read it 3 times because I thought the same thing the first 2.

First, black liberal leaders learned their lesson with the Thomas appointment.  Don't think they'll sit back and give her a free pass for her skin color alone.  Granted, many liberals (myself included) can't stand those guys, and younger blacks frequently feel the same way, but the voice of opposition will still be there.

Second, "give us more than 11% of their vote" is really optimistic.  At this point, I think getting back to 11% would be a pretty impressive feat for anyone whose politics resemble George Bush's.  That's intended less as a dig at the President than as a realistic assessment of current opinion.

That said, the single most important thing conservatives can do for the black community is exactly what you said, show them that "conservatism does not equal racism."  It's a perception that is waaaay too commonly held among both blacks and liberals generally, and it's bad for both sides.  It hurts Republicans politically and Democrats intellectually.  Whenever someone can take a big chunk of turf for granted, it tends to get ignored.

Maybe the hour time change has thrown off my reading ability or something.  Glad to know I wasn't the only one who misread that, though.

I am all for Janice Rogers Brown, I just question whether her nomination will have any effect on the black vote? Ive been a proponent of nominating a Hispanic to the bench. I feel that the Republicans missed a golden oppurtunity to reach out to a segment of the population that has trended Republican with 16% in 1996 to between 40 and 44% in 2004. Trust me, the battle for the Presidency will be fought in the West in 2008. Arizona, New Mexico, Colorado, and Nevada will be the battleground states. Id look for a Hillary/Richardson ticket in 2008 for the Democrats.

You can read?

...since the nomination is on October 31st ...

Anyone wanna give odds on a Face/Off style nomination? "Boo!!" lol...

Pinhead for SCotUS!! lol...

http://uscsports.collegesports.com/sports/m-footbl/scar-m-footbl-body.html

I REALLY hope not.  It would be absolutely awful for our country to gain another Scalia.  Our judicial system does not need to gain another Republican OR Democratic partisan, and for someone who basically is Scalia, he seemingly would be one.

exactly what Scalia does himself...

I can live with any of these. Actually, I am quite happy with any of these.

I think Batchelder is probably underrated.

My preference would be Alito > Batchelder > Luttig (too many "issues" here).

I also would be happy with Sykes, Corrigan or Williams (and obviously with Jones or Brown). And I'd be happy with Garza too.

So let's hope it's any of these...

That shouldn't be a Republican or Democratic view.  That should be a judge's view.  Another Roberts/Scalia type judge would be good for moving the courts away from legislating and back to judging.

Garza would be a good pick, because he deserves it by merit.  That he meets a diversity requirement would be an added bonus only if it would create some benefit for Bush and the GOP, which it wouldn't.  By the time the media, the Dems, and the radical ethnic interests groups got done with him, Garza would be seen as a latino Uncle Tom.  I doubt the selection of any conservative latino would help the GOP at all with Hispanics because it would be rejected by most Hispanic leaders and talking heads who are mostly liberal.

As to Bush's share of the Hispanic vote in 2004; anything above 40% was unlikely.  It'd be nice if the early exit polling data were correct, but it almost certainly wasn't.  The bottom line is that Kerry still won the latino vote by a double-digit margin.  Now yes, Bush's showing with latinos was much better both times than Dole, or his father in 1992, but does that really prove a lasting trend?  My guess is that it does not, and that if the next GOP POTUS nominee doesn't pander as much as Bush, then the percentage will probably go back to the low 30s at least, and probably even lower if Richardson is on the ticket for the Dems.  

So though I doubt a Garza nomination would make one iota of difference with Hispanic voters, I still wholeheartedly support his nomination because his record indicates a conservative judicial philosophy.

Anothe Scalia would simply be another vote for a neutral Sup Court as it relates to the hot-button, contentious social/cultural issues.  The reason the Left so fears this is because it knows that if left to the proper democratic channels, their social agenda will only become implemented in a few places, while it would be rejected in most.  

I saw Batchelder on one of the C-SPANS a few weeks ago talking about the judiciary, and the battle over it between the Federalists and Anti-Federalists, and how despite assurances by the Federalists to the contray, that the Anti-Federalists have been proven correct in their warnings about how the judiciary would usurp power from the other branches and make itself supreme over them.  

From the sounds of that speech, she definitely sounded like someone who opposes judicial activism and the power-grabs of the courts.  She sounded like an excellent candidate, but I wonder if her existing jurisprudence is equally inspiring?

a) I agree wholeheartedly with the endorsement of Garza on non-racial grounds.

b) I take some issue with your analysis of Hispanic voting trends.  From Dole's 20s% to President Bush's 44% (or 40% if you want to use the "adjusted" numbers) is a massive swing for a group in that time period.  I think you are right that winning 40% next time will be difficult unless we have a candidate like Gov. Bush of FL.  I am unsure how a Sen. McCain candidacy from the southwest would play.  However, I doubt we will slip all the way back to the low 30s.  I think that 35% is a floor and 50% is a ceiling for now with Hispanic voters.  Since they still only account for 8% of voters, a 60/40 split doesn't have much impact on the national scene (although an 80/20 split would).  If Republicans can keep a 55/45 majority of white voters (Bush won 58/41 in 2004) while holding close to 40% of Hispanics, they will continue their slim majority in the country.

More importanly from my view, the impact of Hispanic voters will probably change the "majority" on some issues.  They are generally more pro-life, more pro-small business, more family value oriented, more religious, and more likely to value personal responsibility than governmental welfare as a solution to problems.  Republicans should be able to win those voters over.  But even if they don't, they will change the overall makeup of the voting population and thus shift the median on many issues.

And if Rs try hard enough (which doesn't mean pandering), they should be able to win 40% regularly in this community.

Did the "proper democratic channels" work when states tried to pass medical marijuana initiatives, or when SCOTUS (including Scalia) stopped them?

Didn't the Sup Court defer to federal law in that case?  If so, then it could be addressed through Congress.  Its not as if the Sup Court said that the Constitution forbids the use of medical marijuana.  That's not to say that it should be a federal matter, and I'm not arguing that Scalia is perfect.

On the big hot-button issues, a court full of Scalias would not be imposing outcomes as would the court has been doing.  They would not ban abortion; they would leave it to the states.  They would not ban gay marriage; they would leave it to the states.  They would not mandate public nativity scenes, but they would let communities put them up if they so choose.  

In short, Scalias are not likely to usurp power from the proper authorities.  They are not likely to elevate above the normal democratic process those things the Constitution clearly does not protect from them.  They are not likely to create new rights out of thin-air, with no constitutional justification.

Look, read your Constitution.  What it says isn't enough.  In order to judge, the Court has to interpret.  And in interpreting the Constitution, the Court creates law regarding the meaning of the constitution.

That's just what it means to have a common law system.  This isn't France.  In France, the courts don't create law when they decide a case.

And the Supreme Court is not a court of errors.  It has complete discretion in the cases it hears, and it does not sit to ensure that the lower federal courts got the case right.  It takes cases to correct and define the law.

I don't know what it means when people say that judges shouldn't "legislate from the bench."  Assuming that they know that courts in fact make law, they must mean that the courts shouldn't make law in some specific way, but I never see any further explanation.

So, what do you mean?

That's the problem though--Scalia claims to be a protector of federalism, but he didn't uphold the right of the states to determine whether pot could be used medicinally.  He really punked out on that one.  I was expecting more from him.

In any case, the Supreme Court should play an important countermajoritarian role in our democracy.  Allowing public nativity scenes, if the scenes serve to exclude minority religions from local political structures, should be unconstitutional.  We have to realize that democracy doesn't just mean majority rule precisely because majorities can be tyrannical.  The founders recognized that a democracy can only flourish where religion is largely separated from politics.  You see it in the first amendment, and you see it in the provision of the Constitution which bans religious tests for office.  

Furthermore, what things does the Constitution clearly protect?  What does speech mean?  What does the free exercise clause mean?  It's not a specific document.  I don't think your standard would be effective; it would underenforce the constitutional rights--even the uncontroversial ones--that we now enjoy.

Finally, I can't think of a right that has been created out of thin air without constitutional justification.  It simply doesn't happen.

Since there is seemingly no end to mass immigration in sight, then obviously I hope you're right.  A few points though;

1.  Reagan got 37% of the Hispanic vote in 1984, yet despite his signing of an amnesty two years later, it did not represent a shift among latinos.  In fact, it took twenty years for a Republican to equal, or slightly best that performance.  Granted, the latino population was much smaller in 1984, but the decline from that year that held for the next 4 presidential elections should make anyone wary of declaring a lasting shift just yet.  And while the Reagan Democrats who helped him win 64% of the white vote may be disappearing, we shouldn't think of 58% of the white vote as some sort of ceiling.  This is especially so considering the demographics of close blue states like Pennsylvania, Wisconsin, and Minnesota (or red ones like Iowa), where a slightly better performance with whites may have delivered those states for Bush, and may deliver them for whoever in 2008.  
   
2.  I don't dispute your characterizations of the values of Hispanics, but I question if they alter the majority on certain issues very much, at least in practical effect.  Take gay marriage for example; over 60% of Calif latinos voted against it a few yrs ago (as they have in all states where such data exists...I think???), yet they have also given their majority support to people like Feinstein, Boxer, and a whole host of House members (and state legislators) who support gay marriage specifically, and who spit on their values generally.  Its similar to black voters who also typically vote against gay marriage, but who let other considerations lead them to cast a vote for politicians who stand diametricaly opposed to their views on these specific issues.  In Michigan, for example, most black voters supported the marriage amendment, but still turned around and voted for Kerry who was certain to be a champion of gay marriage, despite what he said, through his judicial nominations.  
   
3.  At times I may be careless with use of the word 'pandering', but I think Bush has crossed that line on more than one occasion.  I fear that the GOP and conservatives are falling further and further into a trap of playing more and more on the Democrats turf, and by their rules, as it relates to all matters dealing with immigration.  

When a Justice can't find where in the Constitution it prohibits discrimination based on race but can find a right to abortion, it has become more an effort to legislate than to read the Constitution.   Similarly when cities like Chicago and DC can ban private gun ownership despite the 2nd amendment but the line "Congress shall pass no law establishing a religion" can be used to prohibit prayer before a football game or referencing God in a valedictorian's speech, then the courts are looking for what they want to find instead of reading the text.

Sometime's I think it would be helpful to have fewer lawyers on the SC.  The Constitution is not that complicated and is rather limited.  The main problem is that people want to use the Constitution instead of the electoral process.  So advocates of same-sex marriage will try to find some clause in the Constitution that grants a "right to same-sex marriage" instead of winning over a majority of voters to their view.  And the courts have encouraged that kind of campaign by jumping into legislative debates on the death penalty, abortion, marriage, religion, etc.

Also, when a Justice such as O'Connor opines that affirmative action/reverse discrimination is Constitutional now but might not be in 25 years it sounds ludicrous to us non-legally trained Americans.  Something is either Constitutional or not... how does 25 years change that?  It only changes if you are looking at an issue based on its impact and through the eyes of a legislator.  A judge should be looking at whether it is Constitutional or not and nothing further.

Finally, we have abandoned all real checks on the judiciary.  No judge is threatened with impeachment if they rule that a new right exists that somehow didn't exist for the past 200 years.  The Congress has not used its power to limit the scope of the judiciary in recent times.  So when the Supreme Court finds a new right (such as the right to abortion on demand but not limited to that) that wasn't there for 200 years where is the check on that power?

My hope is that by appointing constructionist and originalist judges, they will check themselves.  When Chief Justice Roberts says that "judging is different from legislating" it brings me hope.

"Allowing public nativity scenes, if the scenes serve to exclude minority religions from local political structures, should be unconstitutional."

Great, then follow the procedure to pass an amendment and make it unconstitutional.  But don't amend the Constitution by appointing judges who think it should say something else.  Right now the Constitution says that "Congress shall pass no law establishing a religion."  That seems clear cut to me.

If we want a "wall of separation between church and state" then we should either a) elected politicians who reflect that view or b) amend the Constitution to include that in it.

To address your last point -- abortion.  Even if there is, as Roberts says, a general right to privacy, that should in no way infer such things as abortion rights.  Even liberal scholars are becoming more confident in saying Roe was wrongly decided.  Gay marriage is the next one, though so far no federal court has done so.

We will never agree on the Establishment Clause.  I don't buy it for one second that a local community's decison to put up a Creche outside city hall in any way represents what the Founders (or any subsequent Framers of any Amendment) meant by an establishment of religion.  Besides which, the Est Clause was directed at Congress.  Noone is hurt by such innocent displays, so if a few malcontents in smalltown USA don't like it, they should try to change it democratically, and having failed in that, they should either just accept it or vote with their feet and move.  Conservatives put up with all sorts of things they find offensive in cities all over the nation, and they too should have the same remedies.  

When I spoke of things that the Constitution clearly does not elevate above the normal democratic processes, obviously some judgment is necessary there.  But originalism, or strict constructionism, is much better than the "Living Constitution" nonsense.  Breyer's example of the Founders not envisioning the internet is ridiculous.  Such a new innovation or technology clearly fits within the principles of what makes up speech or the press, and its reasonable to say that the Framers would have supported the extension of a general concept to its new forms.  However, taking a provision of the Constitution and saying it now protects or requires a right to an abortion, or to gay marriage, is to take those provisions and twist and extend and apply them in ways that clearly were never intended, or envisioned by either the Framers of those provisions or the people who gave their consent to them.  It is not right for judges to abuse their power and radically apply the Constitution in such ways.  If there is to be abortion rights, or gay marriage, or the doing  away with innocuous public displays of religion, then it is for the people to make such decisions.  It is not for the judges to do those things just because the people aren't 'enlightened' enough do what the Left wants.

The Courts role as a counter-majoritarian entity is only legitimate and necessary in cases where the majority would seek to do away with genuine Constitutional rights, not when the Sup Court doesn't like a perfectly legitimate expression of majority values.  

The announcement will be at 7:30am.

Wow... I'll finish this all-nighter writing this paper and I won't even need to wake up to read about it.

Why does Bush announce these things early in the morning?

However, taking a provision of the Constitution and saying it now protects or requires a right to an abortion, or to gay marriage, is to take those provisions and twist and extend and apply them in ways that clearly were never intended, or envisioned by either the Framers of those provisions or the people who gave their consent to them.  It is not right for judges to abuse their power and radically apply the Constitution in such ways.

I would qualify abortion as a new "technology" not unlike the internet (though of course two totally different things). I understand understand the concerns that people have over abortion, but it needs to be protected for when a mother's life is threatened at the very least. And, of course, the flipside is that if you outlaw abortion, people will still get abortions, but they will be illegal and unsafe.

As for gay marriage... really, what POSSIBLE reason do you have for denying two members of the same sex a marriage license in the United States of America?

If the duly elected legislative authorities passed a law allowing same-sex persons to marry, it wouldn't bother me (although since such a union is fundamentally different than traditional marriage as it has been understood since the dawn of time, I think it should be called something else besides marriage).  

The problem is not the outcome, but the corruption of the judicial process required to make it happen by non-democratic means.  We've seen the corrosive effect of the Roe decision, under which a contentious social issue where neither public consensus or constitutional sanction was peremptorily ruled out of bounds for the democratic process by a handful of judges.  Whether the Roe decision is eventually corrected or not, the judicial system does not need more self-inflicted wounds of that kind.

Among the most fundamental is the interest of a society in stability.  We are much, much better off if young males marry and raise a family, rather than impregnating young women and moving on to the next conquest.

To encourage this, we created a system that encourages couples to procreate within marriage.  The benefits (social security for a widowed spouse, ability to inherit w/out tax burden, etc.)are recognition of the financial sacrifices made by the couple to have a child and raise him/her to adulthood.

As I see it, the only tangible benefit to allowing gays to marry would be to allow them these same benefits.  All other aspects (power of attorney, joint ownership of assets, etc.) can be set up contractually.

Gays can unite in a civil ceremony, and gain the social benefit of coupledom.  However, the rest of the equation is about the money, and whether as a society we should be allowed to reward couples for having children within the structures of matrimony.

Yes, there is a counterargument that gays can adopt.  Nevertheless, they cannot have children by "mistake" or because of their sexual activities.  I submit that there is good cause to set aside a separate reward system to encourage couples whose sexual activities could result in children to unite in marriage prior to bringing a child into this world.

technology... if you were living 3,000 BC.

And what POSSIBLE reason would you have for denying any number of members of any number of species a marriage license?

A kindly word of advice here, there are hundreds of very good reasons to allow the state to define what constitutes a marriage. Your last statement appears to be an attempt to trot out the homophobe epithet or compare it to Loving. These arguments will  in the case of the first result in your summary dismissal and in the second merely make you look silly.

Let's stop the impending threadjack and try to stay vaguely on topic.

When a Justice can't find where in the Constitution it prohibits discrimination based on race but can find a right to abortion, it has become more an effort to legislate than to read the Constitution.   Similarly when cities like Chicago and DC can ban private gun ownership despite the 2nd amendment but the line "Congress shall pass no law establishing a religion" can be used to prohibit prayer before a football game or referencing God in a valedictorian's speech, then the courts are looking for what they want to find instead of reading the text.

All you're doing is giving examples.  Why are these examples of "legislating from the bench?" If the concept has nothing more than examples, then it is too mushy to be a real criticism because it can mean anything someone wants it to mean.

I also think that you should research these issues before you claim that these are not in the Constitution.  Equal protection, Abortion, and the gun ownership issue you describe are all 14th Amendment issues.

The Constitution is not that complicated and is rather limited.

What is complicated and not limited, however, is applying the constitution to modern problems.  This doesn't have anything to do with a "living constitution"--whatever that means.  The reason the constitution has survived so long is precisely because it remains relevant to modern problems and can still be used to resolve issues that face the nation.

Also, when a Justice such as O'Connor opines that affirmative action/reverse discrimination is Constitutional now but might not be in 25 years it sounds ludicrous to us non-legally trained Americans.

I'm fairly certain that she didn't say that.  What she said was that she hoped it wouldn't be necessary in 25 years.  In fact, the quote is "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Something is either Constitutional or not... how does 25 years change that?  It only changes if you are looking at an issue based on its impact and through the eyes of a legislator.

The reason it changes is that the interest approved was academic diversity, not racial diversity.  The concept is that race can be used in part in determining admissions because it serves as a strong proxy for people with different widely different experiences and views.  Over time, as racism continues to be eradicated and society values each person by their merit and not the color of their skin, race will not be a good method of ensuring diverse academic views within a classroom.  

Given what she said and what she means, I don't see how this is seeing the world through the eyes of a legislator.

A judge should be looking at whether it is Constitutional or not and nothing further.

That statement almost doesn't mean anything.  There's not a set of laws which are constitutional and a set that are unconstitutional.  The law doesn't divide that neatly.  Certainly some laws are clearly constitutional, and some clearly unconstitutional, but the action is all in the middle.  All judges, regardless of their interpretive method--including originalists and strict constructionists--all judges go outside the Constitution in order to determine what the Constitution means.  And all judges use their person views to inform their decisions.

Again, I submit that legislating from the bench is an empty concept--just code words for judges doing things that you don't agree with.

I'm sorry for being a bit acerbic.  I just believe in the legal system and the judiciary, and I get frustrated when Republicans and conservatives try to undermine it through these sorts of criticisms.  The legal system is there to protect our rights and no one should be against it.

No judge is threatened with impeachment if they rule that a new right exists that somehow didn't exist for the past 200 years.

I wouldn't mind seeing more impeachments.  Funny thing is that this is one of those places where the Constitution is pretty clear.  It says that federal judges are to "hold their Offices during good Behaviour."  "Good behaviour" has a specific meaning--essentially as long as a judge is acting in good faith, he can't be impeached.  

I would be remiss if I didn't point out that judges have never created a right ex nihilo.  Every case has precedent supporting it.  The characterizations of the decisions in the popular media is often misleading and often creates much confusion.

First of all, its a pretty good bet that every state would allow for abortions if necessary to protect the mother's life.  And if returned to the states, then its guaranteed that large sections of the country would have very liberal abortion laws.  Anyone in, or near the West Coast, Illinois, and the Northeast would have access to abortion, pretty much on demand.  As for people living far from those places, and who are of limited means...well that would be a good opportunity for the Left to put its money where its mouth is.  Who knows, perhaps they could create some abortion fund that provides transportation for those of lesser means to the more enlightened states for family-planning services.  

As to marriage; it is a construct of society (and by God too if one is so inclined), and the people, either directly or through their elected representatives, should have the right to define it and decide who gets to take part in it, as was intended by the Framers.  

To bring it back to the general topic at hand, as another said, the issue is how the Courts have usurped such powers from the other branches and from the states and from the people.  The Left knows that most parts of the nation, and the nation as a whole as embodied by Congress, would reject, or already has rejected, their social/cultural agenda, so they turn to the Courts to create these new rights on constitutionally non-existent grounds.  Or in other words, what LagunaDave said.

Great, then follow the procedure to pass an amendment and make it unconstitutional.  But don't amend the Constitution by appointing judges who think it should say something else.  Right now the Constitution says that "Congress shall pass no law establishing a religion."  That seems clear cut to me.

First, that is not what the Constitution says.  What it says is, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

And that clause applies to the states through the 14th Amendment.  

Second, it is unconstitutional.

Third, the purpose of the Establishment and Free Exercise clauses is to ensure that government stays out of the spiritual business, so to speak.  That's why it's there, that's the policy it reflects.  We don't need to elect politicians or amend the Constitution, because the Constitution already says that.

Besides which, the Est Clause was directed at Congress.  No one is hurt by such innocent displays, so if a few malcontents in smalltown USA don't like it, they should try to change it democratically, and having failed in that, they should either just accept it or vote with their feet and move.

First, read the 14th Amendment.  The 14th Amendment has incorporated much of the Bill of Rights against the states.  That was it's purpose.  While the 1st amendment was directed at Congress, the 14th was directed at the states.  

Second, for a democracy to function, it must be inclusive in certain ways.  It can't be the case that just because the majority in a town or state is Jewish, for example, that they can then impose their religion on the minority.  That's not the way it works and that's not the way it should work.  The Framers recognized that for a democracy to function, individuals had to have a freedom of conscience that ensured minority views would be respected.

Furthermore, that's what's behind the concept of limited government.  Governments must be limited to ensure that individual freedom continues to exist.  Limiting the government means restricting the majority's abilities.  And since we are especially concerned about individual conscience, governments should not get involved in religious matters.  

However, taking a provision of the Constitution and saying it now protects or requires a right to an abortion, or to gay marriage, is to take those provisions and twist and extend and apply them in ways that clearly were never intended, or envisioned by either the Framers of those provisions or the people who gave their consent to them.  It is not right for judges to abuse their power and radically apply the Constitution in such ways.

I don't think you understand what is at stake.  Go read Meyer v. Nebraska, Pierce v. Society of Sisters, Skinner v. Oklahoma, and, yes, Griswold v. Connecticut.

It's not about a right to an abortion--it's about the liberty to decide when and whether you will raise your family, and to decide how you will raise your family.

It is unconstitutional for a state government to ban the teaching of foreign languages, because parents should be allowed to decide that.  It is unconstitutional for states to ban private schools because parents should be allowed to decide how their children are instructed.  It is unconstitutional for a state to sterilize prisoners because procreation is a fundamentally personal decision.  It is unconstitutional for a state to ban the sale of condoms, because individuals have the liberty to choose whether they will have children.  

That's what is at stake:  liberties so fundamental to our lives that they were not specified by the framers.  And that's why this is about limited government:  can the government take these liberties from you?

Your definition of what is a legitimate expression of majority values doesn't hold up.  Read the 9th Amendment.  "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

Plus this way a good chunk of the base gets to hear about it for the first time on their morning commute to work which means that a lot of people will have had a chance to talk over their first impressions with co-workers and friends before going home to hear the MSM's spin on it later in the evening.

The 14th and its incorporation aspects were meant to protect black Americans, not to be used as a hammer of activism by which future Courts would thrash traditional values with.  The type of judicial activism we have seen in the last 50 yrs or so, much of it in the name of the 14th, would have been an alien concept for the Framers of the 14th.  That someday judges would cite it as empowering them to strike down those tyrannical nativity scenes was not the type of thing for which it was intended, especially since many of the things our judge-kings now say violate the 14th were in fact very much a part of public policy at the ratification of that Amendment.  

And its bogus to speak of an imposition of religion.  Noone is doing that.  You are confusing hyper-sensitivity with genuine rights.  People who get offended by a nativity scenes, or a prayer before a highschool football game are looking to be offended, and there is no right against that.  There is a difference between respecting minority views and bowing down before them, as you would have us do.  There is a difference between protecting minority views in some reasonable manner and having them imposed on the majority by the Courts.  Limiting the government may indeed require some curtailment of majority power, but it doesn't require that majority views be trampled upon in favor of minority, or as is often the case, radical views.  

The problem with the Randy Barnett idea about a presumption of liberty that protects inherent rights that predate any political order is that it again leaves liberty to be wholly defined (or clarified as) by the judiciary, instead of by the people themselves.  And I don't pretend that the 9th Amendment doesn't exist, but again, I reject the idea that it is for the Courts to say what these unenumerated rights are.  The people are perfectly capable of protecting 'rights' to abortion, gay marriage, etc if they so choose; if they accept them as one of these liberty-based rights.  The 9th should simply stop the federal govt from telling the people and the states that they can't do so; it shouldn't be seen as a tool for the Courts to declare for all what liberty entails.  And I certainly don't think that liberty requires society to grant the same legal status and recognition to gay unions as they have collectively decided to bestow upon traditional marriage.  There is an ideal, and society should be free to endorse it, and doing so does not run afoul of some absurdly-expansionist reading of the Constition.  

So I disagree that laws regulating abortion, or defining marriage somehow represents the govt taking away liberty.  

Basically, you seem to favor penumbras formed by emanations, and Anthony Kennedy's 'sweet mystery of life' (as mockingly put by Scalia) doctrine of liberty, all to be defined by the Sup Court.  

I do not.  I believe there must be some limit on what the Constitution means and protects, otherwise its just a thing of wax in the hands of the judiciary, as Jefferson warned it would be if we accept judicial supremacy.  

So we'll never agree.  

The 14th and its incorporation aspects were meant to protect black Americans, not to be used as a hammer of activism by which future Courts would thrash traditional values with.

Could have fooled me with all it's talk about "citizens" and "persons."  Who's in favor of accepting the terms of the Constitution here?  It says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Now, you tell me where this says it applies only to black people.

I believe that in fact the framers of the 14th Amendment intended the Privileges and Immunities Clause to fully incorporate the Bill of Rights against the states.  

Regarding policy at the enactment of the 14th, you can have your Slaughter-House Cases, but don't expect anyone else to agree.

And its bogus to speak of an imposition of religion.  Noone is doing that.  You are confusing hyper-sensitivity with genuine rights.  People who get offended by a nativity scenes, or a prayer before a highschool football game are looking to be offended, and there is no right against that.

Evidence?  That's a pretty strong claim about the psychology of individuals whose worldview you don't share.

There is a difference between respecting minority views and bowing down before them, as you would have us do.  There is a difference between protecting minority views in some reasonable manner and having them imposed on the majority by the Courts.  Limiting the government may indeed require some curtailment of majority power, but it doesn't require that majority views be trampled upon in favor of minority, or as is often the case, radical views.

Tell me a reasonable manner to protect minority views in the crucial areas--freedom of conscience, racial equality, etc.  

Beyond that, tell me why it is important for a city to express and support the views of the religious majority?  Why does the majority need the government to put up religious symbols and religious protections?  Is religion so weak that it requires governmental enforcement or expression?

If you can put a nativity scene on your lawn, why do you need the city to use taxpayer money to put one on the lawn of city hall?

This isn't any area that government needs to get into, and it's one the government shouldn't get into. Doing so almost always serves to infringe the rights of the minority.

The 9th should simply stop the federal govt from telling the people and the states that they can't do so.

I don't know what you mean by this.

it shouldn't be seen as a tool for the Courts to declare for all what liberty entails.

The 9th isn't the part of the Constitution that requires the Courts to declare what liberty means--that's the 14th.  Check the language quoted above.  It's self-executing against the states.

Basically, you seem to favor penumbras formed by emanations, and Anthony Kennedy's 'sweet mystery of life' (as mockingly put by Scalia) doctrine of liberty, all to be defined by the Sup Court.

That's a strawman argument.  I, and no one I know, supports the penumbral reading of the Constitution advanced in Griswold.  And neither do the courts.  I support the modern jurisprudence on substantive due process.  That doesn't have anything to do with penumbras.  Griswold got a 7-2 majority of the Court, and apparently only one other justice  joined Douglas's opinion of the court.  Five justices concurred on different grounds in a total of 3 concurring opinions, and none of them thought the penumbral analysis was functional.  My views derive from Justice Harlan's concurrence in Griswold.

So, penumbras were essentially stillborn and rightfully so.  

In any case, we all agree that there is a limit to what the Constitution protects.

The thing about the structure of the Constitution is that judicial supremacy, though not always the best, cannot be avoided.

We may never agree, but it won't be for lack of trying.

In any case, this post will probably get me banned.  As a moderate, I am finding it difficult to find a home within the Republican party.