Why I dont post here

[jillian]

I disagree with the way that courtroom was run.

But, and even though my religious affiliations are as I stated, the Courts and Law of the United States and England are inextricably tied to their Judeo-Christian foundation. You have to remember that under English Common Law (which all states in the US with the exception of Louisiana are founded on) there was a distinction between Law and Equity courts. Legal courts were run by the crown and Equity courts were run by the church. This distinction is not completely gone and in some states, like Virginia, there continues to be a real distinction in the way cases are plead at Equity and at Law.

By summarily ripping religion from the foundation of Equity, you remove that firm basis from which Equity decisions were founded calling into question the very chain of stare decisis which creates the current understanding of those cases.

In the court setting, I think that the few remaining religious artifacts of a by-gone time remind a great many people of the solemnity of the proceedings being held. For those of us where that is not the case so be it, but I hardly think that the very foundations of the legal system need to shaken so some people like me won't be offended by the process.

You're kidding, right? The founders were deists who couldn't run fast enough from the church of england.

The Equity Courts in England, PRE-REFORMATION, were indeed a network of about 400 eccliastical courts. But at that time, most government was run by the Chuch. Churches dealt with their own communities.

This bears no rational relationship to courts of equity today. Equity is intended to make right anything that a legal remedy (or money) won't. It encompasses the granting of injunctions, division of property, compelling someone to do something, etc.

It has nothing whatsoever to do with judeo-christian anything.

Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as "natural justice." It is often confusingly contrasted with "law", which in this context refers to "statutory law" (the laws enacted by a legislature, such as the United States Congress), and "common law" (the principles established by judges when they decide cases).

In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a Court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often this form of relief is in practical terms more valuable to a litigant. A plaintiff whose neighbor will not return his only milk cow, which wandered onto the neighbor's property, for example, may want that particular cow back and not just its monetary value. However, in general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"—that is, a court will not grant an injunction unless monetary damages are an insufficient remedy for the injury in question. Law courts also enter orders, called "writs" (such as a writ of habeas corpus) but they are less flexible and less easily obtained than an injunction.

Equity (law - Wikipedia, the free encyclopedia)

And, for Anguille.... No Courts force you to take an oath to G-d, you "swear OR affirm" to tell the truth.

 

[Tech_Esq]

That's interesting what you have to say about the history of law. I don't agree though, that no longer requiring people to swear to God would in any way take away from the solemnity of the proceedings or shake the foudations of the legal system. In fact it would only solidify the principal of separation of Church and State, not to mention increase the number of citizens available , granted probably by a very minuscule number, to serve on juries once the religious requirements were removed.

I am not particularly in favor or spending money on things like removing statues of the ten commandments or redesigning our currency again, but putting an end to practices that contradict the Constitution is a good idea IMO, and I'm glad to see that some states and some judges are doing that.

We have no disagreements then. Like I said up front, I disagree with the way that court proceeding was run. The difference, in my mind, between "swearing" and "affirming" is de minimus and should be freely used.

 

[Tech_Esq]

You're kidding, right? The founders were deists who couldn't run fast enough from the church of england.

The Equity Courts in England, PRE-REFORMATION, were indeed a network of about 400 eccliastical courts. But at that time, most government was run by the Chuch. Churches dealt with their own communities.

This bears no rational relationship to courts of equity today. Equity is intended to make right anything that a legal remedy (or money) won't. It encompasses the granting of injunctions, division of property, compelling someone to do something, etc.

It has nothing whatsoever to do with judeo-christian anything.



Equity (law - Wikipedia, the free encyclopedia)

And, for Anguille.... No Courts force you to take an oath to G-d, you "swear OR affirm" to tell the truth.

Jillian, we don't have a disagreement about the history or the current practice of equity in the court system, it appears. I'm not as sure as you appear to be that if you remove the core principle upon which cases for hundreds of years have been decided, that it is without effect.

You might be right, but we're risking screwing up our courts for what great purpose? For me, the Standard of Review for what ever the change is that's proposed would have to be strict scrutiny.

And you are correct Jillian, the witnesses swear or affirm. But, strangely for jurors it appears not to be quite as cut and dried. In the juror's handbook I posted earlier, it allowed for swearing only on the Bible in some cases. I found that very odd. I've never heard of it, but knowing some judges, it wouldn't surprise me if it happened.

 

[Anguille]

You're kidding, right? The founders were deists who couldn't run fast enough from the church of england.

The Equity Courts in England, PRE-REFORMATION, were indeed a network of about 400 eccliastical courts. But at that time, most government was run by the Chuch. Churches dealt with their own communities.

This bears no rational relationship to courts of equity today. Equity is intended to make right anything that a legal remedy (or money) won't. It encompasses the granting of injunctions, division of property, compelling someone to do something, etc.

It has nothing whatsoever to do with judeo-christian anything.



Equity (law - Wikipedia, the free encyclopedia)

And, for Anguille.... No Courts force you to take an oath to G-d, you "swear OR affirm" to tell the truth.

Nobody, not even a court, could force me to swear to God. Well, maybe if they used waterboarding..,
But my question was about what happens when people refuse to swear to God when called to perform jury duty? I would have like to known what that judge would have had to say but I was dismissed from jury duty before I had the chance to tell her I had remained silent. Till reading the responses in this thread I was not even aware that affirming is an option in many courtrooms. Perhaps it was in that one as well, it was, however never presented as such. It seems like common sense to me that afirmimg would be all that would be necessary in an juror's oath.

 

[jillian]

Jillian, we don't have a disagreement about the history or the current practice of equity in the court system, it appears. I'm not as sure as you appear to be that if you remove the core principle upon which cases for hundreds of years have been decided, that it is without effect.

You might be right, but we're risking screwing up our courts for what great purpose? For me, the Standard of Review for what ever the change is that's proposed would have to be strict scrutiny.

And you are correct Jillian, the witnesses swear or affirm. But, strangely for jurors it appears not to be quite as cut and dried. In the juror's handbook I posted earlier, it allowed for swearing only on the Bible in some cases. I found that very odd. I've never heard of it, but knowing some judges, it wouldn't surprise me if it happened.

From the NYS Jurors' Handbook:

The oath is a pledge that the juror will act fairly and impartially in the role as a judge of all questions of fact. This oath obligates the juror to put aside individual emotions or opinions and to use logic and objectivity throughout the trial and the deliberations.

NYS Unified Court System Juror Information

I've never seen a juror have to place a hand on a religious book. Of course, that might differ depending on where one lives.

And I appreciate your response. Thank you.

I think where we disagree is that I don't believe that religion is the core basis of the system. I think quite the opposite. I believe the values of the enlightenment and philosophy are what underpin our judicial system. Religion, if any, would be a more deist type of pov than any specific Christian concept. I also happen to think that these ideas, like any other philosophical concepts are interesting to discuss.

I also don't think we're risking anything. In my experience, jurors take their jobs very seriously no matter how small or large the case and whether or not they belief in a deity or not.

 

[Tech_Esq]

From the NYS Jurors' Handbook:



NYS Unified Court System Juror Information

I've never seen a juror have to place a hand on a religious book. Of course, that might differ depending on where one lives.

And I appreciate your response. Thank you.

I think where we disagree is that I don't believe that religion is the core basis of the system. I think quite the opposite. I believe the values of the enlightenment and philosophy are what underpin our judicial system. Religion, if any, would be a more deist type of pov than any specific Christian concept. I also happen to think that these ideas, like any other philosophical concepts are interesting to discuss.

I also don't think we're risking anything. In my experience, jurors take their jobs very seriously no matter how small or large the case and whether or not they belief in a deity or not.

Thanks Jillian,

I don't think we disagree when it comes to the oath part. I'm not at all worried about jurors taking the job seriously. My opinion of them is the same as yours. Also, I've never seen anyone required to swear on a Bible, but I've practiced in some interesting courtrooms in front of some interesting southern judges. It would not at all surprise me if one of them made a rule like that.

I clearly understand that our Founders were, by in large, Deists. But, as you know while the Constitution was the foundation of our federal statutory laws, it was not the foundation of the laws in effect in the states at the time. Even today, the law of Virginia is the English common law as it existed in 1765 and modified by statute since. If you really want an odyssey through time, come and practice divorce law here. (Legal separation is not recognized as a concept. You can, under rare circumstances, get a Divorce a Mensa et Thoro and of course you end up with a Divorce a vincula Matrimonii).

But the point is that there is a substantial part of state law that you can trace directly back to a time when equity was far more ecclesiastical in its reasoning than today. When the courts began hearing both, they didn't just snap their fingers and change the way they heard or reasoned cases. It was a very gradual change. But I don't see any big reason to change anything about it do you?

 

[José]

Originally posted by Anguille
I don't think public school students should be made to pray in class and this incident seemed very similar to me.
I don't think that people should be made to feel they must swear to God in a courtroom. Public schools and United States courtrooms must not have religious affiliations.

Anguille,

I’m pleasantly surprised with your posts. The issue of school prayer clearly shows the inherent flaws of the american model of secularism.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

In other words, teachers (representatives of the state) aren’t allowed to create an embarassing situation by initiating prayers but classmates are.

This is a fact, people. American secularism, as enshrined in the first amendment, does not protect an atheist, muslim, jewish child/teenager from embarrassement provoked by “the free exercise of religion”.

I have nothing but respect for the framers of the US Constitution. They were men ahead of their time but the american model of secularism is an idea whose time has passed. The first ammendment needs to be modified to reflect the fact that the secular nature of the modern democratic state prevents “the free exercise of religion” in public schools, courts, etc...

 

[José]

And here comes the resident patriots of the Board...

Don’t you dare propose changes to the US Constitution!!!

Don’t you know Madison climbed Mount Sinai and received the US Constitution directly from the hands of the Almighty?

 

[José]

Tech_Esq decided to complicate the issue even more by bringing up the issue of state rights.

The US was founded as a loose confederation of states and although the federal government has slowly eroded much of that state autonomy the american states still enjoy much more freedom than states and provinces in other countries.

I think regional autonomy is a good thing but not to the point of compromising the core values of a modern representative republic. When the US was founded it was a secular country at the federal level and (in many cases) a christian theocracy at the state level. A political monstruosity that defies description.

As far as these basic values are concerned, any functional state must impose conformity on its political subunits and secularism is one of these values. A state with theocratic traits within a secular federation is an aberration.

You cannot spend 10 years in jail for robbing a bank in California and have your hand cut off, shariah style, for the same crime in Texas (a farcical example but I’m sure you got the gist)

 

[José]

I’m gonna try to simplify, editec:

1) – The partition of Palestine was a miserable failure. There will never be a palestinian state in the West Bank and Gaza because the right to live in Palestine is the non-negotiable core of the palestinian national identity. No people can renounce to the defining factor of its own natinal identity. Forget it.

2) – Palestinians would like to rule a unitary state in Palestine like south african blacks rule their country, by simple majority. They’d like to exercise unrestricted self determination in their own homeland, I won’t argue against facts. But this is not part of their national identity. A limited sovereignty and self determination under international oversight is open for negotiation because it does not compromise their national identity.

But it’s imperative that the world community does its part by pressuring Israel to desegregate and, at the same time, offering total protection to the jewish people. And don’t fool yourself: under intense international pressure the jewish racial dictatorship wouldn’t last long. Intense pressure must be put on the palestinians too, so they come to terms with the fact they will enjoy limited sovereignty in a single state.

The palestinian people will never be convinced to renounce to their historical homeland but they can be convinced to share sovereignty over the land with the jewish people.

If you think this is starry-eyed idealism you’re arguing against facts. This is a reality in South Africa now. International pressure and much less international guarantees managed to desegregate the country.

But as I said the biggest obstacle continues to be the lack of political will and the pessimism displayed by so many people. A chinese proverb immediately comes to mind:

If you think you’re gonna fail, you failed before you start.

 

[Ravi]

Um, Jose? Public school children are already protected from being forced to pray in school. And teachers aren't allowed to initiate prayers.

 

[José]

I never said they were forced, Ravi.

I said the kind of secularism conceived by the framers of the US constitution does not protect non-religious citizens or followers of minority religions from the following embarrassing situation: all/most/some students stand up and begin praying outloud. I’ve been through this so I can assure you it’s tremendously embarrassing and humiliating.

Don't get me wrong, the american model of secularism created by the framers was a fantastic achievement for their time, the first implementation of the non-confessional state idealised by the Enlightenment. But its time has passed. It's time for America to move on and adopt a full-fledged secularism, 21th century secularism that prohibits any overt, blatant "exercise of religion" that may embarrass non-religious citizens.

 

[Ravi]

It's called freedom of speech. Not sure why it embarrasses and humilates you...if they talk about Santa does it also embarrass you?

 

[editec]

And here comes the resident patriots of the Board...

Don’t you dare propose changes to the US Constitution!!!

Don’t you know Madison climbed Mount Sinai and received the US Constitution directly from the hands of the Almighty?

Agreed.

The deification of the Floundering Fathers by we moderns.

They forged an incredibile document for their time, given the problems they had to ignore (like slavery), but their time passed, as they knew it would.

Fortunely for us, they had the foresight to make it possible for future generations to interpret that document in ways that made it possible for this nation to change with changing conditions. They built into that remarkable document the possibility of amending it as needed, too.

It is impossible to write a set of laws (or a social contract, if you will) for all time, folks.

They knew that.

Apparently some of us want to believe that is not the case.

Some of us truly want to believe that one can simply impose one's interpretation as the "strict" interpretation of their exact meaning, and dismiss everyone else's interpretations of that document as irrelevant and an imposition of our misguided values upon their perfect document

Rather reminds me of biblical scholars who insist that they -- and they alone! -- have a handle on the mind of God.

The world belongs to the living, folks.

 

[Anguille]

Agreed.

The deification of the Floundering Fathers by we moderns.

Ha ha!

Rather reminds me of biblical scholars who insist that they -- and they alone! -- have a handle on the mind of God.

Well put!

 

[José]

Originally posted by editec
Agreed.

The deification of the Floundering Fathers by we moderns.

They forged an incredibile document for their time, given the problems they had to ignore (like slavery), but their time passed, as they knew it would.

Fortunely for us, they had the foresight to make it possible for future generations to interpret that document in ways that made it possible for this nation to change with changing conditions. They built into that remarkable document the possibility of amending it as needed, too.

It is impossible to write a set of laws (or a social contract, if you will) for all time, folks.

They knew that.

Apparently some of us want to believe that is not the case.

Some of us truly want to believe that one can simply impose one's interpretation as the "strict" interpretation of their exact meaning, and dismiss everyone else's interpretations of that document as irrelevant and an imposition of our misguided values upon their perfect document

Rather reminds me of biblical scholars who insist that they -- and they alone! -- have a handle on the mind of God.

The world belongs to the living, folks.

Exactly!

They sound like a bunch of fundamentalists bombarding each other with biblical, koranic and talmudic passages like there was no tomorrow!!

 

[José]

Originally posted by Ravi
It's called freedom of speech. Not sure why it embarrasses and humilates you...if they talk about Santa does it also embarrass you?

Because we are primates. We don’t like to feel singled out. But I don’t really expect you to understand my subjectivity anymore than I can understand yours. Words aren’t very well suited to convey emotional states.

Anyway, understanding each other’s feelings is immaterial.

I don’t have to understand the embarrassement felt by a christian student surrounded by devil worshippers performing a satanic ritual before class and he doesn’t need to understand my embarrassement when I saw my classmates performing a religious ritual I didn’t believe and had no interest in participating.

All we have to do is create laws that protect us all from these embarassing situations when we are in public property. American secularism does a poor job of preventing these situations to occur. It was a brilliant idea but it has already run its historical course.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof OUTSIDE STATE FACILITIES.

Let’s upgrade american secularism to bring America and the rest of the world into the 21th century before it comes to an end.

 

[Ravi]

Because we are primates. We don’t like to feel singled out. But I don’t really expect you to understand my subjectivity anymore than I can understand yours. Words aren’t very well suited to convey emotional states.

Anyway, understanding each other’s feelings is immaterial.

I don’t have to understand the embarrassement felt by a christian student surrounded by devil worshippers performing a satanic ritual before class and he doesn’t need to understand my embarrassement when I saw my classmates performing a religious ritual I didn’t believe and had no interest in participating.

All we have to do is to create laws that protect us all from these embarassing situations when we are in public property. American secularism does a poor job of preventing these situations to occur. It was a brilliant idea but it has already run its historical course.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof OUTSIDE STATE FACILITIES.

Let’s upgrade american secularism to bring America and the rest of the world into the 21th century before it comes to an end.

No, I strongly disagree. If you can limit one type of free speech, you can limit any of them. There is no reason, no reason at all, that students should be denied civil rights as long as they aren't disrupting class time.

 

[Tech_Esq]

And here comes the resident patriots of the Board...

Don’t you dare propose changes to the US Constitution!!!

Don’t you know Madison climbed Mount Sinai and received the US Constitution directly from the hands of the Almighty?

Jose,

You are clearly a bonehead, but I'm a little bored so I'll play with you tonight. More because I like debating Constitutional issues than because I think your sword is sharp.

I think it is fine to propose Constitutional changes and support them being done just as the founders proposed they be done. By super majority in each house of Congress, signature by the President and ratification by 3/4 of the states. Not by skulking up an undemocratic back alley.

Mount Sinai is not in Virginia, you must have your stories crossed.

 

[Tech_Esq]

Tech_Esq decided to complicate the issue even more by bringing up the issue of state rights.

The US was founded as a loose confederation of states and although the federal government has slowly eroded much of that state autonomy the american states still enjoy much more freedom than states and provinces in other countries.

I think regional autonomy is a good thing but not to the point of compromising the core values of a modern representative republic. When the US was founded it was a secular country at the federal level and (in many cases) a christian theocracy at the state level. A political monstruosity that defies description.

As far as these basic values are concerned, any functional state must impose conformity on its political subunits and secularism is one of these values. A state with theocratic traits within a secular federation is an aberration.

You cannot spend 10 years in jail for robbing a bank in California and have your hand cut off, shariah style, for the same crime in Texas (a farcical example but I’m sure you got the gist)

No Way Jose! You don't get to pawn this crap off as historical fact.

Loose confederation of states? We are talking about the US Constitution right? You don't think we are still living under the Articles of Confederation do you?

The social contract in the US was formed by by-passing the states by constitutional convention. The Constitution was ratified by the people of the states not by the states. If you don't understand the difference you need to get educated.

There is absolutely no reason to have a monolithic government in the US with one law that covers all people. That's fine if you are in some small European country smaller than some states in the US, but there is no guiding principle of representative democracy or republican government that says that everyone must live under one set of laws. Indeed, Federalism is a practical necessity for a country like the US where there are such broad differences between people's attitudes living in different parts of the country. I certainly don't want to live under the laws of Massachusetts, for instance and I bet they don't want to live under Virginia's laws.

"... must Impose conformity"? Seriously Jose, what are you some kind of fascist?

"theocratic traits?" Really? Go ahead and call out names. I'm as irreligious as the next guy, so I wanna know who has a State government with theocratic tendencies chicken little.

I think the differences in how we punish crimes is a serious benefit to the federal system. Each state gets to decide punishment for crimes committed in their midst. And, they get to be mini-labs for what policies work and which don't.