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The Constitution is certainly a "living document" - it is alive and well today - and it speaks to us every day through the federal judiciary. It lives in pace with the times; and ‘"that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it.’ See "Popular Basis of Political Authority" Thomas Jefferson to James Madison, Papers 15:392-97 (6 Sept. 1789). It continues to sustain our nation of laws because its provisions are flexible enough to survive change, while yet preserving the spirit as well as the letter of the laws that govern us. Were it otherwise, our nation under law would have dissolved long ago.
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Originally Posted by mohawkx
So After reading this entire thread, it does appear that right wing conservatives and libertarians would like the Supreme Court to be taken out of the Constitutional equation, leaving the interpretation of what it actually means to each individual citizen. What an anarchistic joke that would be.
I stand by my original post on page 1. The Constitution is meaningless unless you have a Supreme Body that has the ultimate power to interpret it. Our founders knew that with out a Supreme Court with the ultimate power of final arbitration, there would be chaos and governmental gridlock. Legislatures and executives would interpret the constitution to fit their political agenda and there would be no power in the land to check that.
The constitution is the greatest document ever created by man but is useless and just so many words with out the Supreme Court to interpret it and tell the rest of us how it is applied to law and legislation.
What delusional thinking of you two.
Let us go over a few points. First, the framers did not "create a Supreme Body which had ultimate power to interpret the Constitution". If you believe that, then you are completely ignorant and need to read the case "Marbury v. Madison".
Secondly, Thomas Jefferson was basically an advocate for anarchy. Or at least, he believed that the only way to limit the government was to have people constantly trying to overthrow it. Thomas Jefferson hated judicial review, and Marbury v. Madison(which gave the Supreme Court constitutional oversight) was during his presidency. Which he lamented repeatedly.
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." - Thomas Jefferson
Thomas Jefferson basically wanted all Constitutional questions to be settled with Constitutional amendments, by the people themselves. He did not want an unelected, lifetermed oligarchy. Which was appointed for political reasons, to rule over our lives. And the Constitution means absolutely nothing, if it can be redefined at-will by unelected, life-termed lawyers.
As a note, don't ever use Thomas Jefferson to defend statism. Someone would have to either be ignorant, naive, or delusional to use Thomas Jefferson for the defense of statism.
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps...
This only speaks for the vision, hence fears, Jefferson had, not how things take shape.
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Thomas Jefferson basically wanted all Constitutional questions to be settled with Constitutional amendments, by the people themselves. He did not want an unelected, lifetermed oligarchy. Which was appointed for political reasons, to rule over our lives. And the Constitution means absolutely nothing, if it can be redefined at-will by unelected, life-termed lawyers.
Then the very existence of Supreme Court becomes questionable, or at least the way it was constituted to come about which was not by same way the other two branches of governments were to be.
And constitutional amendments were the recipe for all constitutional questions? Kinda crazy when you think about it. If something is unconstitutional, make it so (or not) via amendments? We would potentially end up with as many amendments as laws. Or, is it the people (and who would be these people?) to be in-charge of amendments to change the constitution.
If anything, the best approach might be to challenge the Supreme Court and make no guarantees about those appointed to serve.
My thoughts and beliefs are that the Legislative Branch makes the laws and passes the bills. The Executive Branch carries out and implements those bills and laws and the Judiciary (Supreme Court) determines whether or not the laws and bills passed by the legislature and the actions taken by the Executive are constitutional.
Did I misunderstand my Civics 101 class?
I don't see anything in Article III giving them that power. In a perfect world, the Legislative Branch would never write an unconstitutional law. In a perfect world, if an unconstitutional law were written and passed, it would be vetoed by the Executive Branch. Even though it isn't listed in their powers, the Judicial Branch should check the other 2 branches by striking down unconstitutional laws.
What happens when an unconstitutional law is written, passed by Congress, signed into law by the President and then said to be Constitutional by the Supreme Court?
Article III. Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Marbury v Madison was the seminal case that defined the boundary between the separation of powers. Under Article III, Section 2 of the U.S. Constitution, the judicial power is vested in the Supreme Court, and such other lower federal courts as the Congress may establish, with jurisdiction over cases and controversies arising under the Constitution and substantial cases where there is diversity of citizenship subject to the limitations of the Eleventh Amendment. The Supreme Court is the final arbiter of the interpretation of the Constitution, and its decisions are binding as law, until overturned by the court, legislative act, or by constitutional amendment. Indeed, it would not be possible for the court to exercise that grant of jurisdiction over cases arising under the Constitution without interpreting its provisions. In this, the power of the judicial branch is limited; and the federal courts have always been self-limiting under long-standing provisions of abstention and principles of comity; and more recently under the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Congress has the power to further limit the jurisdiction of the federal courts not expressly conferred, albeit that it would not be in its interest - or the interest of the nation - to do so, for without the power of the judiciary, the acts of the legislative branch would not be enforceable except by unchecked executive power. The power of the judiciary is at the very core of the constitutional system of checks and balances. As Chief Justice Marshall wrote: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws. . ." Marbury v. Madison, 5 U.S. 137 (1803). The sword of justice cuts both ways, and in its sway guards over our individual rights and liberty. It is the same today.
This only speaks for the vision, hence fears, Jefferson had, not how things take shape.
Are you saying Jefferson is wrong? Are you saying that the justices are less biased than anyone else? Why is it then that so many Supreme Court rulings come out 5-4? Basically, along party lines.
Furthermore, doesn't the Supreme Court have a conflict of interest in regards to the power of the Supreme Court? Doesn't the Supreme Court tend to overreach in their authority? Isn't it a policy to always defer to the federal government when any constitutional question is ambiguous?
I think most people recognize that the Supreme Court is all of the things Jefferson noted, and more. No one believes that the Supreme Court itself is "good". Rather, the best anyone can say is, there doesn't seem to be a better alternative.
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Originally Posted by EinsteinsGhost
Then the very existence of Supreme Court becomes questionable, or at least the way it was constituted to come about which was not by same way the other two branches of governments were to be.
What Jefferson was worried about, was that the Supreme Court wasn't accountable to the people. Nor is it really accountable to the other branches. Nor is there a reasonable method to balance the power of the court(IE FDR's attempt to stack the court). Thus, the Supreme Court justices, who are free from any oversight whatsoever, have unlimited authority to interpret the Constitution how they individually see fit. They become the equivalent of unelected, lifetermed despots.
Which wouldn't be a problem if the justices were actually unbiased men, always seeking the best-interests of the people. But if the Supreme Court is headed by men who are no better than any other men. And who have their own interests, then why would any sane man invest such nearly unlimited power in the hands of men who are basically completely unaccountable to the people?
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Originally Posted by EinsteinsGhost
And constitutional amendments were the recipe for all constitutional questions? Kinda crazy when you think about it. If something is unconstitutional, make it so (or not) via amendments? We would potentially end up with as many amendments as laws. Or, is it the people (and who would be these people?) to be in-charge of amendments to change the constitution.
First, there is nothing wrong with having as many amendments as there are laws.
The amendment process was intended to prevent the government from passing new laws by a simple majority. This country wasn't intended to be a democracy, and the founders had a real hatred of democracy(go look it up).
The amendment process requires nearly unanimous consent for handing the government more power. And Jefferson believed that the individual states could declare any law unconstitutional. With the only remedy to such declarations a constitutional amendment.
It might seem impractical for someone who wants an active federal government. But most of the founding fathers did not want a very active federal government. Especially not Thomas Jefferson.
Are you saying Jefferson is wrong? Are you saying that the justices are less biased than anyone else? Why is it then that so many Supreme Court rulings come out 5-4? Basically, along party lines.
Not sure how you arrived at that conclusion about Jefferson being wrong (when I said, he had the vision), because you just proved his point. And mine, that the same fears have come true.
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Furthermore, doesn't the Supreme Court have a conflict of interest in regards to the power of the Supreme Court? Doesn't the Supreme Court tend to overreach in their authority? Isn't it a policy to always defer to the federal government when any constitutional question is ambiguous?
Indeed. And that is the reality we face today, and had to, given the prescription for it despite the fears, as noted, by Jefferson.
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What Jefferson was worried about, was that the Supreme Court wasn't accountable to the people. Nor is it really accountable to the other branches. Nor is there a reasonable method to balance the power of the court(IE FDR's attempt to stack the court). Thus, the Supreme Court justices, who are free from any oversight whatsoever, have unlimited authority to interpret the Constitution how they individually see fit. They become the equivalent of unelected, lifetermed despots.
Indeed. But, how do you make it accountable to the people? Why was it not made a part of the Constitution at the time?
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First, there is nothing wrong with having as many amendments as there are laws.
Actually, it would be a big mess. You understand the requirements for an amendment, right? And, how do you expect these amendments to be honest to ALL people?
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The amendment process was intended to prevent the government from passing new laws by a simple majority. This country wasn't intended to be a democracy, and the founders had a real hatred of democracy(go look it up).
I wouldn't use hatred, because they feared mob rule. One of many fears they had. These fears were rooted in experience, historical perspective, being in touch with reality. Jefferson didn't hate men when he suggested that he feared that they cannot be impartial.
Yet, we have a system where everything is indeed driven by a majority (how a majority is determined is a different issue, at various levels). Including amendments. And in fact, the more stringent requirements to continually change the constitution via amendments was implemented from this fear that a simple majority may not be sufficient.
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The amendment process requires nearly unanimous consent for handing the government more power.
And that is why any law via amendment would make for a huge mess. States weren't meant to be their own kingdoms... not even with Articles of Confederation.
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And Jefferson believed that the individual states could declare any law unconstitutional. With the only remedy to such declarations a constitutional amendment.
Hence the dismissal of Articles of Confederation, and replaced with the US Constitution, to shift more power at the federal level. Obviously, there was significant opposition back then too, probably more than now.
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It might seem impractical for someone who wants an active federal government. But most of the founding fathers did not want a very active federal government. Especially not Thomas Jefferson.
"Very" is a subjective term. It was "very" decentralized approach to the confederation that led these men to scramble to come up with the US Constitution.
Last edited by EinsteinsGhost; 08-21-2014 at 02:30 PM..
Contrary to popular belief, the Declaration of Independence was not a foundational document; it was a declaration of our independence from the colonial rule by the English Monarchy, and an act of war. Likewise, it may come as a surprise for some to learn that Thomas Jefferson's ideas about natural rights were not adopted by the framers of our Constitution. (Jefferson was not a framer of the Constitution. He was serving as Ambassador to France at the time of the Constitutional Convention; and except for his correspondence with some of the delegates, what resulted was largely the work of James Madison. Even his draft Constitution and Declaration of Rights for Virginia was rejected in favor of the model of George Mason.) Jefferson wrote in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed . . . ." The framework of our government, however, did not incorporate the ideals expressed by Jefferson in the Declaration of Independence. The intoxicating ideas of Rousseau and Locke that Jefferson so admired, and that inspired our revolution (and that of France as well), gave way to a more sober expression of our rights and freedoms in the Constitution and Bill of Rights. The framers of our Constitution created a nation of laws and not men; which represents a compromise between the rights of individuals and the power of the state. All men are not created equal, they are equal under the law; and the rights to "Life, Liberty and the pursuit of Happiness" are not unalienable, they are subject to law. In this compromise - this social contract that is our Constitution - rests the security for our individual rights and liberty.
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