http://www.msnbc.msn.com/id/13939275/


My question:

Does a judge have any right overriding the will of the people?

Is this considered being an activist judge? Will George Bush and the Republicans condemn the decision?


An aside on the decision, the judge said that this will cause injury to WalMart....but let's say that the law was against dumping toxic waste into the harbor and required companies to pay for the clean up. Does this mean that the judge would have said that because it would make a company clean up it's own mess that it would be considered injury?

If anyone really understands the verdict, please explain it.

Does a judge have any right overriding the will of the people?

Is this considered being an activist judge? Will George Bush and the Republicans condemn the decision?

Absolutely...what other purpose does a judge have then to check the power of the legislative and executive branches? What seperates a judge who strikes down a law and an activist judge is the legal reasoning and jurisprudence used to arrive at the decision. It would be just the same if there was a law to legalize slavery. It would be struck down by an independent judiciary on the basis that it violates freedoms. Your consistent support for the idea that a majority should have unlimited power is a dangerous principle.

It doesn't seem like you haven't even asked any questions about this Wal-Mart law specifically, but Ill address it anyway (i have not find the decision either so will be happy to view it once someone finds it).

The first problem with my understanding of the law is that it is discriminatory in such a way to effect only Wal-Mart. Laws are supposed to be general so that it affects all parties equally. But specifically targeting a business, race, religion, or individual is unconstitutional.

'Wal-Mart Bill' Assailed Before Judge



Secondly, your argument that a law against the dumping of toxic waste is comparable to this situation is simply apples and oranges. Laws against the dumping of toxic waste into the harbor which negatively effects the entire community and hurts the environment has absolutely nothing to do with the way that a business handles employee benefits. I really do not see if there are even many straws you can grasp at with this one.

Next, any law that sets an arbitrary number for benefits or wages is a limitation on economic freedom. Its very simple. If the employers do not like the wages or benefits that they are receiving, they can negotiate with their employer through a union or they can quit and purue happiness elsewhere. Obviously if Wal-Mart employs so many people it cannot be that bad. If it was that bad, nobody would work for them and would go to a competitor. The state does not have a right to limit the ability of private persons to make contracts that effect only the two parties involved.

But what laws does this violate? As the state argued, it's a LEGAL law, i.e. it does not violate any other law.

It seems to me that when a judge says "God" should not be on money that he's not being an activist judge, as has been accused by people like Bush, but he/she's using precedent and the seperation clause.

But in this case the judge is INDEED being an activist judge because he is not using precedent or anything other than the fact that "it will hurt WalMart". That seems very much like the definition of "activist judge" to me. It looks like he's only looking out for a corporations' interest while ignoring the people's voice.




But it doesn't affect just WalMart, it prohibits future companies from doing the same thing, i.e. dumping their employee responsibilities onto the gov't.




Huh? it's different because I MADE IT THAT WAY. One situation the company is dumping their employee problems on the gov't, the other the company is dumping their waste into public streams.

And read the decision and YOUR DEFENSE of the decision. According to you, if a company was dumping waste you couldn't make a law to stop it if it

a) cost them money
b ) they were the only ones dumping





I'm sorry....what part of the constitution is that in again?

A federal pension law. Unfortunately, that AP article was rather sloppily written and not very informative, but this USA Today article explains it better:


(if you ask me, it's kind of a dumb law, assuming the judge interpreted it accurately)

Its not activist at all. The judge decided that the law was discriminatory as it only affected Wal-Mart or was specifically targeted at Wal-Mart. Even corporations are protected by discrimination laws. Its not the argument that "it will hurt Wal-Mart" but that it will "hurt ONLY Wal-Mart." And again who is amking the argument that this is ignoring the people's voice? If the people's voice was against Wal-Mart...wouldn't they not shop there?



It does effect only Wal-Mart at this point in time. And it was for the judge to decide whether it was discriminatory...and he decided it was.


Of course i support anti-dumping laws. You may take comfort in your strawman arguments but in no way did i say that. There is a significant difference between the way that two private parties deal with eachother and how a private action effects others. An enormous difference even.



The same place the Constitution says the government can make arbitrary decisions about the economic decisions of private individuals? The Constitution's purpose was to limit government power and that applied to all aspects of one's freedom. I don't really see how the above statement applies to this situation at all.

I guess you didn't read Blackstone's valued contribution to the thread that indicated that it was a federal law that it violated and had absolutely nothing to do with discrimination. But thanks for making something up.




Because in reality things don't work that way. Just because WalMart may be evil, if some poor schmuck can get a bargain they really don't care. It would be nice if things worked the way YOU think they did, then all those companies that outsourced would have go out of business instead of making record profits.



You make arguments as if that's "the law" when it's simply YOUR OPINION of what should be. You may want to change your approach on how you debate, it's a little confusing. You may want to start your paragraphs with "IMHO" or something similar.

I did read Blackstone's link to the USA Today article and i also read the Washington Post article. The Maryland was specifically struck down because it blatantly violated a federal law. But that doesn't mean there weren't other reasons (which we cannot fully comment on until the full decision is reviewed). It is my contention, as well as the Washington Post article that the law was discriminatory against Wal-Mart. When you make a law that specifically targets one group, class, race, ethnicity, and yes even business...then it violates the Equal Protection Clause. The law must be applied equally to all parties without such discrimination. Language in the law that exempt everyone but the target party is discriminatory.



So? Shouldn't it be up to the individual consumer to decide the morality of Wal-Mart? Are you smarter then everyone else and thus should make shopping decisions for them? If the people don't like Wal-Mart...then just don't shop there...its that simple. If you don't like Wal-Mart but still shop there, then obviously you don't care that much about the ethics of its business or else you wouldn't give them your money.



Are you trying to say that my point that the Founding Fathers favored limited government is an opinion? If you want to debate that, please bring it on because that might be the easiest debate on this site.

No, it shouldn't be "up to the individual". It has nothing to do with being smarter, why would it? There are bigger factors in the world than financial motivating factors. Little things like ethics and morality. I don't know if you've noticed but not all laws are business related.

I can go back to the public dumping scenario. According to you people could just stop giving business to the company that was polluting....why make laws to stop pollution? After all, consumers and individuals will take care of it by not patronizing the company. Right?



No, I'm saying when you state something similar to the following:

The state does not have a right to limit the ability of private persons to make contracts that effect only the two parties involved.

You should begin this with "IMHO". Because in fact, the state DOES have the right to limit such contracts and does so and will continue to do so.

Or maybe you need to start it off with "According to the founding fathers". You really kind of come off as a radical and it's a tad confusing. It's pretty obvious that such a comment is incorrect without any additional caveats.

Then who should decide RedCedar? Who should decide for me? Who should decide for you? And aren't things like ethics and morality subjective? So wouldn't the one who decides for us have to inject their own sense of morality into their decisions...decisions that not everyone will agree with but will be forced to adhere to? If you take away one's right to buy the goods they want with their own money...are you not restricting liberty?



Strawman Argument



There, now you know what a Strawman argument is and should stop continuing to do it. Especially after i said not two posts before:



I say it again...there is a significant difference between the relationship of an employer and an employee and that of the employer affecting the entire community. Its so ridiculous to even compare.


That is an opinion that I have no qualms about and have said before. Its just the same as your opinion that the government should have a large amount of concentrated power. I know the government limits contracts between two parties...but that doesn't mean they have the right to do it. The government has no rights...only the individual has rights.

First off, I must say that I am sympathetic to your cause and the whole wal mart thing- but I think this law was very badly written, and was doomed from the beginning.

Does a judge have any right overriding the will of the people?

Yes- whenever a state law violates the over-riding federal law, or the constitution. It is, in fact, the very definition of thier job- to keep that state law in "check" - to maintain the "balance" as it were. It is the judiciaries' job to make sure the will of the poeple don't circumvent the constitution- regardless of what the majority does or thinks. It is the tryanny of the majority that the judiciary protects the minority from!

Is this considered being an activist judge?

I personally hate this term- it is really a "sour grapes" conservative cooked up term, and I don't like it being used by the other side of the coin either. Judges end up "legislating from the bench" due to bad law- not really something they are gunnin' to do. I can think of really only two real activist judges in recent history- Scalia and Roy Moore. The rest is political rhetoric IMHO- sour grapes because a decision didn't go the way we wanted it to.

This was just a badly written law, doomed to fail because it was just poorly concieved - I understand the basis- but if they want to write this law- they have to apply it to all business, not simply single out one business venture.

Had they written this law much better- it would have stood.

Will George Bush and the Republicans condemn the decision?

No- they have some gay bashin' to do or something- this one won't make the radar!

I should decide for you. It's my perrogative, if I have enough power to make those decisions for you then by law I have that right. That's what liberty means.



Your whole post was a strawman.



But I don't. I think there should be absolutely NO laws that inhibit companies. Companies should be free and liberated to do whatever they want. The only way to limit companies is by stop buying their products. That's the key. So dumping is ok with me, because eventually everyone will just stop purchasing their service or product.



I also believe that the gov't should be able to capture and torture Americans...if and only if they interfere with contracts beteween individuals, hence prohibiting the freedom and liberty of companies which the constitution absolutely upholds. Businesses have inalienable rights that people should not hinder.

Just to clear the air on this, judicial activism is when a judge decides to impose his own ideology with reckless disregard for whether or not the law actually backs him up on it, and it has certainly been known to occur in recent decades.

Oh and by the way, undoing judicial activism (or attempting to) is not judicial activism. It's just fidelity to the law.

I wonder how much it would have cost wal-mart.... They are a BILLION DOLLAR company you would think they could cover their workers many of them poor with little or no health insurance a little better. I guess that's business though.


To some degree a judge has to use his own idealogy when giving his verdict. It is his opinion based on the laws, so the theory of actvist judges does not exist. Think about this: if the same judge had ruled the way you wanted instead of against your view he would not be an activist judge anymore he would be perfectly fair...

Once again- it is sour grapes by conservatives that don't like the fact they can't just roll over the constitution whenever they want. Judge Roy Moore would be a prime example of a true activist judge- he made an issue simply to try and write law from the bench- commisioned and put up a set of the ten commandments in a public building, then refused any other religion the same access to that building, and simply didn't get away with it- that would be an activist judge- a judge ruling on what is a essentially a bad law (like this wal mart case) Or in the cases during the civil rights era, where judges were forced to make decisions on states that used the other two branches like a club to harm other races- they were not activist judges- they were doing thier duty to the constitution to protect the minority from those horrible civil rights violation, and we recognize this today.

The same can be said for this Wal-mart bill, which I think exemplifies the issue of bad law forcing a judges hand. I don't disagree with the need to riegn in Wal-mart abuses, but you have to do it in a manner that is equal law for all, not just one corporation, as the judges decision pointed out.

We have a tendency to blame the wrong poeple in these decisions, it is almost always the fault of the legislative bodies that we end up with "legislating from the bench"- because of how badly or slanted ideologically away from constitutional principles the legislative body wrote the law.

Now- let's say the law read "Any company with over 5000 employees in this state shall......" and name the rest of conditions they were wanting to place on Wal-mart hiring- so that every company with over 5000 employees had to comply- I think this law would have stood. It was that they targeted it TOO much towards Wal-mart.

We had a very similar deal here with the "box mart" boom and communities really wanting to keep wally world out- and they were well advised by lawyers to make any law they wrote apply to every company athat had the same practices of putting up eyesores, by nameing the square footage of the building to apply the law to- instead of the specific company.

Good law usually means that the judiciary doesn't even get involved, it is bad law that brings them in the first place!

CruisingRam-

Once again - working against judicial activism is not in itself judicial activism. If you want to discuss a particular case or particular judge, feel free to start a separate thread. I'm not about to deal with your various misconceptions here, because it would trigger a response from the mods not to take the thread off-topic. I only commented in order to address that one point you raised about that term.

Moving back on to the topic:


I don't think it's a foregone conclusion that it would have stood if even it had been worded the way you suggest. The federal pension law probably still would have kicked in to protect those "large, multistate employers" that the USA Today article I linked to (#4) says the law protects.

Do you have a link to the decision itself at all? Did the judge say anything about discrimination?

http://www.mdd.uscourts.gov/Opinions152/Op...martopinion.pdf

It is in PDF

Thanks. So the last full paragraph shows that the court had not held that discrimination was the problem. Cutting and pasting from pages 31-32:

The opinion shows that the same result would have obtained if the law had applied to all businesses in the state as well. As suggested by the Washington Post article linked to by lederuvdapac in post #2, this could potentially spell trouble for Massachusetts' recently enacted universal health care statute.