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If you live in an area that is or will be subject to fracking there are things to consider.
Here's an interesting Constitutional question related to fracking working its way up the court system:
Suppose an oil company invests money in a drilling lease or the purchase of a mineral estate. They don't own the surface estate (the "land"), but they have the right to extract oil and other minerals or natural resources from below the land - in other words, they have rights to the sub-surface mineral estate.
If a local government (city, county, or state) passes a regulation that impacts their ability to frack the land and extract natural gas or oil in that manner, has the government "taken" part of the mineral estate in such a way that it triggers the 5th Amendment's takings clause:
"nor shall private property be taken for public use, without just compensation"?
In other words, if a government bans fracking on some piece of land that an oil company wants to frack, is that considered taking private property for public use without just compensation such that if a government does such a thing, it must pay the oil company "just compensation" for the "harm" done to the value of their mineral estate?
To make it more complex, consider the question in these circumstances:
1) The city bans all oil/natural gas extraction on the land - both traditional drilling and fracking
2) The city just bans fracking on the land
3) The city places a moratorium on fracking (let's say 5 years) so they can study the effects of fracking more
Now, compare how a Constitution originalist would answer the question verses how a living document Constitutionalist would answer the question.
Last edited by hammertime33; 11-13-2014 at 06:05 PM..
I see now, I did not understand that your concern was actually the judiciary and not a particular theory of interpretation. The Constitution itself does require a Supreme Court, which is charged with deciding cases arising under the Constitution and federal law. In order to decide cases, interpretation is required.
There are strengths and weaknesses to each of originalism and Living Constitution theory. The strength of originalism is that it is closer to objectivity--thus it is more predictable. The weakness of originalism is that it must attempt to shoehorn new developments into a late 18th century framework. In the lethal injection example, how can an originalist compare the cruelty and unusual-ness of lethal injection to that of capital punishment methods in the late 18th century? It's a hopeless task, really, unless you want to decide that lethal injection did not exist when the Constitution was framed so it is not constitutionally permissible (which is kind of a cop out). The strengths and weaknesses of Living Constitution theory are converse. It is less predictable because it adapts with time. But it is more robust in the face of new developments.
Look, I think your lethal injection example is a really bad example. There might be actual good examples out there to prove your argument, but lethal injection is not it. Every sane person will arrive at the conclusion that lethal injection is "less cruel" than being hung or being shot. And for that matter, prisoners are still given the choice in how they will be put to death. Outside of crazy people, they all choose lethal injection.
If we look at originalism vs the living document theory. In 99.9% of cases, if someone has a "good sense of history", especially "constitutional history"(IE if someone who has read the federalist and anti-federalist papers), and uses history to guide them, then they would arrive at the same exact conclusions. And in the .1% of cases they do not, the differences will be very small.
I like Scalia's basic point-of-view when it comes to constitutional questions. He says it like this; All you have to do is ask the question. "If the people who ratified the constitution/amendment would have known that a certain power was either granted to the Federal government, or prohibited to the states by said constitution/amendment. Would they have ratified the constitution/amendment?".
If we look at your issue of lethal injection. Another question might be "If there had been lethal injection in 1787, would it have been considered "cruel and unusual punishment?".
I think everyone on this forum can agree that if lethal injection had been available in 1787, no one would have considered it cruel or unusual. On the other hand, I cannot imagine the people in 1787 ratifying a constitution which declares a "right to abortion", or a "right for same-sex marriage". For that matter, I don't believe they would have ratified a constitution which gave the Federal government unlimited power to tax the states, and then bribe them with their own money. I cannot imagine them ratifying a constitution that required everyone to buy health insurance or be fined. And so on and so forth.
As a general rule, the people who ratified the constitution, were trying to "keep the federal government weak". So in every case where the federal government is effectively "stripping away power from the states", you can know with almost 100% certainty that the constitution wouldn't have been ratified had that provision been in it(or at least had it been known that it was in it).
With that said. I agree that originalism is insufficient in preventing bad decisions by the Supreme Court. For instance, I mentioned the federal law raising the minimum drinking age to 21 in my previous post. If we look at the court case that challenged the constitutionality of that law(South Dakota v. Dole).
It was a 7-2 decision that effectively said that Congress stripping away funding to states who didn't meet their requirements wasn't compulsion, as long as the difference in funding was kept small. And guess who agreed with that decision, Antonin "the originalist himself" Scalia.
If we go back to our originalist logic, I cannot imagine the states ratifying a constitution which allowed the federal government that kind of power. Therefore, Scalia was certainly wrong, and originalism failed.
Quote:
Originally Posted by TheCityTheBridge
The Justices are nine legal experts appointed by the President and confirmed by the Senate. They are fallible human beings, but they are far more qualified than you and I to interpret the Constitution and the law.
I vehemently disagree with your view that the power of judicial review is extra-constitutional. I think that the "judicial power" that "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," etc., is a description of judicial review which comes from Article III of the Constitution.
"Cases" had an understood legal meaning--lawsuits between parties that are decided by courts. Judicial power had understood legal meaning--including the ability to interpret the law and apply it to facts. That the Supreme Court's judicial power extends to "Cases" arising under the Constitution thus assumes that the Supreme Court shall interpret the Constitution and apply it to the cases before the Court.
Look, I understand that the Supreme Court has to interpret the constitution when cases are brought before it. You call this "Judicial review". And to a certain extent you are correct, it is judicial review. The issue I have with Judicial view, is that its unlimited ability to strike down Federal and state laws certainly wasn't intended by the framers. And secondly, the fact that the Supreme Court cannot honestly be "checked" by the other two branches of government in any meaningful way. Which is also not something which was intended.
And not only can the Supreme Court strike down laws, it can effectively create its own laws. For instance, the Supreme Court is what actually created the "forced busing" of the 70's. It was not a statute.
Forced busing came about because of interpretations of the "equal protection clause". Which basically said that schools were "unequal" unless there was "racial balance". And so the states were forced to transport children across entire cities to meet the requirements laid down by the Supreme Court.
Now, regardless of how you might feel on the issue. If the Supreme Court can use the equal protection clause in that way; What else could they use the equal protection clause to do? For instance, we keep talking about "equal pay for equal work" lately. Especially the so-called difference in incomes between men and women. Couldn't the equal protection clause combined with the commerce clause be interpreted by the "radicals" on the Supreme Court to effectively create the equivalent of statutes to completely regulate all private business, and possibly even private individuals?
Couldn't these kinds of interpretations be used to give the Supreme Court effectively the power to "rule by decree"? I mean, what kind of "interpretations" could radicals on the court get out of a combination of the commerce clause, the general welfare clause, and the equal protection clause?
And lets pretend that the Supreme Court did make some very "questionable" decisions. What can realistically be done about it? What check is there really for the Supreme Court?
There are only two things that can be done about the Supreme Court. Either you wait until a Supreme Court justice dies and replace him with someone who will overturn the previous decisions. Or you stack the court with more people who will make different decisions(IE the switch in time which saved nine).
In either case, you would completely strip away any legitimacy to the court. Which is also why the court really hates overturning previous rulings. In order to keep a "facade of legitimacy" to the court, no one is honestly allowed to question their decisions.
We can question the president. We can say he is an evil fascist ruling by executive order. We can question the Congress, declaring their actions illegitimate and unconstitutional. But who really questions the Supreme Court? Don't they basically get a "free pass"? Why?
Even if we do complain about their decisions, no one ever proposes a solution. Once these nine lawyers, who rarely agree with each other on much of anything have spoken, then we throw our hands up. There is just nothing that can be done, right? So we just accept their decisions, and to some extent even defend their decisions as if they know better how to organize our society than we do. They are supposedly so much smarter or more knowledgeable than us, so why wouldn't we just let them rule over us? Right?
As for the Living document theory. What bothers me is that anyone who subscribes to such a theory, doesn't really like the constitution. In fact, those who support the Living document theory, fundamentally hate our constitution. And not only will they not question the legitimacy of the Supreme Court. But as long as the Supreme Court is making decisions that they agree with, they will defend those decisions as if that was what was intended all along.
Regardless, the Supreme Court is a joke. And those who believe in a Living Document theory are the biggest jokes of them all. If people weren't so blinded by their biases, and their inability to imagine alternatives, or at least if it wasn't for their inability to actually fight for those alternatives. Maybe we could bring "reason" back to this country.
Where are our Thomas Jefferson's?
I especially love his "Rough Draft" of the Declaration of Independence.
You are free to think that government roads restrict liberty from a political philosophy point of view. From a Constitutional point of view, however, they do not restrict liberty.
I assume you mean, "They don't violate the constitution". Liberty is liberty. That is like saying the death penalty doesn't restrict liberty. It most certainly does restrict liberty. In fact, it completely extinguishes liberty. It just doesn't violate the constitution.
The problem here, is that you imagine your liberty comes from government. In reality, your liberty comes from you being a human being. The government can only take your liberty away. At best, you can trade a small amount of your liberty in hopes that your government will prevent other people or other governments from taking away even more liberty. But in all cases, you have less liberty than when you started.
Here's an interesting Constitutional question related to fracking working its way up the court system:
Suppose an oil company invests money in a drilling lease or the purchase of a mineral estate. They don't own the surface estate (the "land"), but they have the right to extract oil and other minerals or natural resources from below the land - in other words, they have rights to the sub-surface mineral estate.
If a local government (city, county, or state) passes a regulation that impacts their ability to frack the land and extract natural gas or oil in that manner, has the government "taken" part of the mineral estate in such a way that it triggers the 5th Amendment's takings clause:
"nor shall private property be taken for public use, without just compensation"?
In other words, if a government bans fracking on some piece of land that an oil company wants to frack, is that considered taking private property for public use without just compensation such that if a government does such a thing, it must pay the oil company "just compensation" for the "harm" done to the value of their mineral estate?
To make it more complex, consider the question in these circumstances:
1) The city bans all oil/natural gas extraction on the land - both traditional drilling and fracking
2) The city just bans fracking on the land
3) The city places a moratorium on fracking (let's say 5 years) so they can study the effects of fracking more
Now, compare how a Constitution originalist would answer the question verses how a living document Constitutionalist would answer the question.
This question is pretty easy to answer, actually. You would analyze this regulation as a "regulatory taking," which basically means that the government is not physically occupying the land, but is restricting its use. The key question is whether the regulation eliminates all economically beneficial use of the land (there is another question to ask--does the regulation advance legitimate state interests). The short answer is probably no. The subsurface mineral rights are a subset of the parcel of property. You look at the total parcel's value without the regulation against its value with the regulation to determine whether a regulatory taking has occurred.
In 1), there is a good case that there is a taking (under current jurisprudence, which is not originalist). In 2), there is probably not a taking, but this conclusion is fact-specific (and depends on the value of traditionally accessible minerals vs. that of fracking accessible minerals). In 3) there is no taking.
Interestingly, originalism would probably not consider any of the three a taking. The principle of the Takings Clause descends from the Magna Carta, which contemplated the physical seizure of land by the sovereign. "Pure" originalism would likely not recognize the possibility of regulatory takings.
The current state of jurisprudence is thus more "Living Constitutionalist"--regulatory takings are recognized and require just compensation.
Quote:
Originally Posted by Redshadowz
Look, I think your lethal injection example is a really bad example. There might be actual good examples out there to prove your argument, but lethal injection is not it. Every sane person will arrive at the conclusion that lethal injection is "less cruel" than being hung or being shot. And for that matter, prisoners are still given the choice in how they will be put to death. Outside of crazy people, they all choose lethal injection.
It does not matter if a prisoner is given a choice amongst cruel and unusual punishments. The only question for Constitutional purposes is whether the punishments are cruel and unusual.
Quote:
Originally Posted by Redshadowz
If we look at originalism vs the living document theory. In 99.9% of cases, if someone has a "good sense of history", especially "constitutional history"(IE if someone who has read the federalist and anti-federalist papers), and uses history to guide them, then they would arrive at the same exact conclusions. And in the .1% of cases they do not, the differences will be very small.
I like Scalia's basic point-of-view when it comes to constitutional questions. He says it like this; All you have to do is ask the question. "If the people who ratified the constitution/amendment would have known that a certain power was either granted to the Federal government, or prohibited to the states by said constitution/amendment. Would they have ratified the constitution/amendment?".
If we look at your issue of lethal injection. Another question might be "If there had been lethal injection in 1787, would it have been considered "cruel and unusual punishment?".
Quote:
Originally Posted by Redshadowz
I think everyone on this forum can agree that if lethal injection had been available in 1787, no one would have considered it cruel or unusual. On the other hand, I cannot imagine the people in 1787 ratifying a constitution which declares a "right to abortion", or a "right for same-sex marriage". For that matter, I don't believe they would have ratified a constitution which gave the Federal government unlimited power to tax the states, and then bribe them with their own money. I cannot imagine them ratifying a constitution that required everyone to buy health insurance or be fined. And so on and so forth.
I think that everyone on this forum can agree that lethal injection did not exist in 1787. I think everyone can agree that the Constitution demands Equal Protection and that it protects Liberty from deprivation without Due Process. Equal protection and liberty protection are the source of the medical privacy right in Roe v. Wade and the potential source of the same-sex marriage right (the Supreme Court has not yet spoken on this and there is a circuit split).
The Framers ensured that Congress had taxing and spending powers. They also ensured that Congress had the commerce power and the necessary and proper power. Why would you ask what they would have ratified when the powers at issue are specifically identified in the document they did ratify.
Quote:
Originally Posted by Redshadowz
As a general rule, the people who ratified the constitution, were trying to "keep the federal government weak". So in every case where the federal government is effectively "stripping away power from the states", you can know with almost 100% certainty that the constitution wouldn't have been ratified had that provision been in it(or at least had it been known that it was in it).
That is untrue. The Articles of Confederation kept the federal government weak--so weak that the Constitution was drafted and ratified to create a stronger federal government. It was not a mistake to include the taxing, spending, commerce, and necessary and proper powers in Article I, section 8. In fact, it was the structure of the houses of Congress that was expected to preserve the proper protection of federalism.
Quote:
Originally Posted by Redshadowz
With that said. I agree that originalism is insufficient in preventing bad decisions by the Supreme Court. For instance, I mentioned the federal law raising the minimum drinking age to 21 in my previous post. If we look at the court case that challenged the constitutionality of that law(South Dakota v. Dole).
It was a 7-2 decision that effectively said that Congress stripping away funding to states who didn't meet their requirements wasn't compulsion, as long as the difference in funding was kept small. And guess who agreed with that decision, Antonin "the originalist himself" Scalia.
If we go back to our originalist logic, I cannot imagine the states ratifying a constitution which allowed the federal government that kind of power. Therefore, Scalia was certainly wrong, and originalism failed.
Think about the result if the decision goes the other way--you would have judges determining whether Congress can attach conditions to spending rather than letting the political branches handle that work. The dissents in that case were not concerned generally with spending conditions, but with the 21st Amendment's explicit delegation to the states the regulation of the alcohol trade. None of the Justices doubt that Congress can exercise its spending power, including through the imposition of conditions on spending. There is no doubt that the Framers granted Congress the spending power.
Quote:
Originally Posted by Redshadowz
Look, I understand that the Supreme Court has to interpret the constitution when cases are brought before it. You call this "Judicial review". And to a certain extent you are correct, it is judicial review. The issue I have with Judicial view, is that its unlimited ability to strike down Federal and state laws certainly wasn't intended by the framers. And secondly, the fact that the Supreme Court cannot honestly be "checked" by the other two branches of government in any meaningful way. Which is also not something which was intended.
And not only can the Supreme Court strike down laws, it can effectively create its own laws. For instance, the Supreme Court is what actually created the "forced busing" of the 70's. It was not a statute.
Forced busing came about because of interpretations of the "equal protection clause". Which basically said that schools were "unequal" unless there was "racial balance". And so the states were forced to transport children across entire cities to meet the requirements laid down by the Supreme Court.
If you think that the Constitution is a higher authority than federal and state law (which the Constitution itself says that it is), then the judiciary is given the power to strike down laws that conflict with the Constitution. That is what judicial review means in the context of the Constitution.
The Supreme Court is checked by the other branches. Its members are appointed by the President and confirmed by the Senate. Congress has the impeachment power. Congress also has the power to create (and destroy) lower courts. Congress also has the power to eliminate and regulate parts of the Supreme Court's jurisdiction (namely its appellate jurisdiction--the one that it is exercising in almost all cases before it).
Regarding your example of "creating laws," your history is flawed. The Supreme Court determined, in Brown v. Board of Education (1954), that segregated educational facilities are inherently unequal and violate the Equal Protection Clause of the 14th Amendment. Thus, segregated schools were directed to integrate. Many school boards attempted to block enforcement of the decision. In later cases, school boards were directed to eliminate prior segregation by, if necessary, redrawing boundaries and busing students. Recalcitrant districts would have to create plans to desegregate and have them approved by the reviewing courts. The Supreme Court later decided that a school district was only subject to this kind of oversight if it had intentionally segregated its educational system. In short, legal segregation would be dismantled under court oversight. De facto segregation would be left to the political branches.
This entire system was designed to ensure Equal Protection under the 14th Amendment.
Quote:
Originally Posted by Redshadowz
Now, regardless of how you might feel on the issue. If the Supreme Court can use the equal protection clause in that way; What else could they use the equal protection clause to do? For instance, we keep talking about "equal pay for equal work" lately. Especially the so-called difference in incomes between men and women. Couldn't the equal protection clause combined with the commerce clause be interpreted by the "radicals" on the Supreme Court to effectively create the equivalent of statutes to completely regulate all private business, and possibly even private individuals?
Couldn't these kinds of interpretations be used to give the Supreme Court effectively the power to "rule by decree"? I mean, what kind of "interpretations" could radicals on the court get out of a combination of the commerce clause, the general welfare clause, and the equal protection clause?
Equal Protection applies to governments, not to private actors. You are building a strawman.
Quote:
Originally Posted by Redshadowz
And lets pretend that the Supreme Court did make some very "questionable" decisions. What can realistically be done about it? What check is there really for the Supreme Court?
There are only two things that can be done about the Supreme Court. Either you wait until a Supreme Court justice dies and replace him with someone who will overturn the previous decisions. Or you stack the court with more people who will make different decisions(IE the switch in time which saved nine).
As I mentioned, there are several checks for the Supreme Court. They are not often used, which is good. But they exist.
Quote:
Originally Posted by Redshadowz
In either case, you would completely strip away any legitimacy to the court. Which is also why the court really hates overturning previous rulings. In order to keep a "facade of legitimacy" to the court, no one is honestly allowed to question their decisions.
We can question the president. We can say he is an evil fascist ruling by executive order. We can question the Congress, declaring their actions illegitimate and unconstitutional. But who really questions the Supreme Court? Don't they basically get a "free pass"? Why?
Even if we do complain about their decisions, no one ever proposes a solution. Once these nine lawyers, who rarely agree with each other on much of anything have spoken, then we throw our hands up. There is just nothing that can be done, right? So we just accept their decisions, and to some extent even defend their decisions as if they know better how to organize our society than we do. They are supposedly so much smarter or more knowledgeable than us, so why wouldn't we just let them rule over us? Right?
Anybody can question Supreme Court decisions--that is what the 1st Amendment is for. There are plenty of articles and comments complaining about their rulings (as we see for Presidential and Congressional (in)action).
Their decisions are authoritative, much like federal law passed by Congress and signed by the President. You are free to criticize federal law, but if you violate it then you are subject to applicable penalties. But the Court's decisions are limited to the Cases and Controversies before them. The Justices agree with each other on many things. Watch the great Scalia/Breyer videos posted by phma and you'll see a lot of agreement between these two ideological opposites.
Quote:
Originally Posted by Redshadowz
As for the Living document theory. What bothers me is that anyone who subscribes to such a theory, doesn't really like the constitution. In fact, those who support the Living document theory, fundamentally hate our constitution. And not only will they not question the legitimacy of the Supreme Court. But as long as the Supreme Court is making decisions that they agree with, they will defend those decisions as if that was what was intended all along.
Regardless, the Supreme Court is a joke. And those who believe in a Living Document theory are the biggest jokes of them all. If people weren't so blinded by their biases, and their inability to imagine alternatives, or at least if it wasn't for their inability to actually fight for those alternatives. Maybe we could bring "reason" back to this country.
That is silly.
Quote:
Originally Posted by Redshadowz
Where are our Thomas Jefferson's?
I especially love his "Rough Draft" of the Declaration of Independence.
The Declaration of Independence does not constitute a government--that is the purpose of the Constitution.
And Jefferson's high-minded principles are certainly marred by his slave ownership through the end of his life.
Quote:
Originally Posted by Redshadowz
I assume you mean, "They don't violate the constitution". Liberty is liberty. That is like saying the death penalty doesn't restrict liberty. It most certainly does restrict liberty. In fact, it completely extinguishes liberty. It just doesn't violate the constitution.
The problem here, is that you imagine your liberty comes from government. In reality, your liberty comes from you being a human being. The government can only take your liberty away. At best, you can trade a small amount of your liberty in hopes that your government will prevent other people or other governments from taking away even more liberty. But in all cases, you have less liberty than when you started.
And here it is, at last. Your problem is with the idea of government. You dislike the Constitution because it is not anarchic-libertarian. And you are free to hold that political philosophy, but it is not our form of government (this thread is about the Constitution of the United States, not political philosophy).
I think it is funny that you argue, on the one hand, that the death penalty and seatbelt laws restrict liberty, but that same-sex marriage and abortion should be unprotected as liberty interests under the Constitution.
I understand that you dislike the example, but lethal injection is not painless.
It does not matter if a prisoner is given a choice amongst cruel and unusual punishments. The only question for Constitutional purposes is whether the punishments are cruel and unusual.
This is what I mean, you aren't being reasonable. Which is what bothers me; If people that seem as intelligent as you can't even be reasonable. No wonder the world is what it is.
Two things. First, the way people were executed in 1787 was either by hanging, or by firing squad. Neither are "painless". So saying that lethal injection might be cruel because it isn't painless is a useless argument. Don't make it.
Secondly, not only does everyone know that lethal injection is far less painful than being hung or being shot to death. But when given the choice, those who are actually being executed always choose lethal injection. Why? Because they know lethal injection is "less cruel" than the alternatives. Something less cruel than something else which isn't considered cruel, cannot be considered cruel.
Regardless, what I'm appealing to is "human reason". Everyone knows that lethal injection is "more humane" than the alternatives. It isn't painless, but it is far less painful than any other method. Therefore it can't be "more cruel" than hangings. Therefore it cannot be unconstitutional.
The only people who would possibly make the argument you are attempting to make are people who are already opposed to the death penalty. It isn't a reasonable argument. And it only appeals to those people who are looking for the vaguest reason to justify their opposition to the death penalty. Basically, they are too compromised by their emotions that they can no longer think rationally.
If you cannot even bring yourself to agree with me that lethal injection cannot possibly be unconstitutional. Then not only are you being irrational and a waste of my time. But you are effectively making a statement that we should bring back hangings. I highly doubt that is what you want. So please, start being reasonable.
All I ask is for people to be reasonable. Why is it so hard?
Quote:
Originally Posted by TheCityTheBridge
The Framers ensured that Congress had taxing and spending powers. They also ensured that Congress had the commerce power and the necessary and proper power. Why would you ask what they would have ratified when the powers at issue are specifically identified in the document they did ratify.
That is untrue. The Articles of Confederation kept the federal government weak--so weak that the Constitution was drafted and ratified to create a stronger federal government. It was not a mistake to include the taxing, spending, commerce, and necessary and proper powers in Article I, section 8. In fact, it was the structure of the houses of Congress that was expected to preserve the proper protection of federalism.
Look, do you know why our Constitution was created? Do you know why the Articles of Confederation was "insufficient"? Do you know why the Federalist papers were created?
You, and most other people, imagine that the Articles created this weak government that no one liked. And that we all just woke up one day and realized that what we actually wanted was a "strong central government". This view would imagine that the states were eager and willing to hand nearly unlimited authority to the central government on basically every single issue.
That conception of history is just completely absurd. The reality was that, most of the states didn't even want to get rid of the Articles of Confederation even after Shay's Rebellion(which was the trigger for the Philadelphia Convention). Many of them thought they would even be better off "going it alone". On top of that, the Philadelphia convention wasn't originally intended for the purpose of creating an entirely new constitution. The delegates were only sent to make minor changes to the Articles of Confederation.
Even when the Constitution was eventually drafted at the Convention. It took nearly two years of debating in every single state for all of the states to finally ratify the new Constitution. The Federalist papers are merely James Madison and Alexander Hamilton trying to defend the document they drafted. Especially the particulars of its necessity, as well as its limitations, against its critics "The anti-federalists".
If you contrast the concerns of the Anti-Federalists with the arguments of the Federalists. You can begin to understand what the constitution was at least "sold as" by its creators.
I really like this article. You can certainly consider me an "anti-federalist".
Regardless, the more important question is, "Why was the Constitution created"? Well that is simple. There is only one reason why the constitution was created "To keep the union together".
In fact, keeping the union together was an issue not only in 1787, but it was continually a problem until Lincoln crushed the south in the Civil War. And many might even say that it is still a problem.
The powers granted to the Federal government by our Constitution, were the tiny number of powers deemed "absolutely necessary for the continuation of the union". These powers can really be broken down into two groups. The powers granted to the Federal government to interact with and defend America from foreign nations. And the powers granted to the Federal government to basically prevent the individual states from trying to slit each others throats.
Basically, the real object of the creation of our constitution, was to give the Federal government the "powers of mediation". So that the states could "get along" with each other. Secondly, it created the presidency effectively as a model of George Washington(who would become the first president). The president(IE the Executive) would be the commander of the US military, as well as being responsible for foreign relations(IE treaties).
In fact, I often say that the entire purpose of all "legitimate" governments is to be the mediator of disputes. Its actions are only justified if its intentions are to "help us all get along more peacefully". The first governments were really just "courts". The "chiefs" of the indigenous tribes acted like judges. In fact, the job of the old Kings in the bible was to act as judge in the event of a dispute.
The government is supposed to be an "unbiased third-party", who is there to provide justice. You know the old saying "Justice is blind".
When our government departs from this course of impartiality, or the desire to maintain the peace. Then it becomes illegitimate. Especially if that "peace" is merely the result of force, coercion, or violence(IE the Civil War).
My major objection against the Living Document theory is less an absolute objection, and more an "appeal to reason". What I mean by that is, I believe that the Living Document theory does far more harm than any good. Especially in that it divides us through its inconsistent and arbitrary nature. And further, it hands far too much authority over our society into the hands of a small number of unelected, life-termed men. In a sense we make them kings, or czars, or other potentates. And by doing so, we sow the seeds of anger and discontent. Which can easily boil over into violence and destruction.
If we look at probably the most controversial Supreme Court case in history, Roe v. Wade. How is it remotely possible that such a decision does anything to provide justice? Or even a perception of justice. That court case is not only obviously wrong, and would have obviously been opposed by every state in the union in 1787. But it actually divides this country and creates the kind of hatred and violence where people are even getting killed as a result.
How does the Supreme Court's Obamacare ruling unite the country or provide justice? Especially knowing now how many times Obama and Co. lied to us to get it passed in the first place.
The last major decision on guns rights that I'm aware of was "McDonald v. Chicago". It came down to a 5-4 decision. Had it gone the other way, I can't imagine what would have happened.
In my view, the only current issue so important to the American people, that an infringement of such right would cause this country to literally "fall apart", is the second amendment. Yet, the liberals, and their liberal members on the Supreme Court make a constant attack against it at their own folly.
The point is, the living document theory is not only completely illogical, it is also incredibly dangerous. And it is my opinion that there is no way the Supreme Court could have gotten away with half the rulings it has handed down, had it not been for the Civil War creating the "Supremacy(tyranny) of force" against the states and the people. At one time, the people and the states were far more willing to stand up to obviously biased and corrupt Supreme Court decisions. Even in a time where the Federal government actually overtly threatened them.
I love this video. It reminds me of the same ridiculous games that we play even in politics today. I especially love John Adams disdain for Alexander Hamilton. Who was a scumbag of the highest order, and wanted to "invade" Virginia when James Madison and Thomas Jefferson made their "Virginia and Kentucky resolutions". He was a statist, and had no respect whatsoever for "the people". I would bet he and people like him, would support your putrid "living document theory", as long as it suited him. A man of zero principle.
On the other hand, if the changes that supporters of the living document theory want to have, followed the proper Constitutional amendment process. Then it at least brings legitimacy and principle to it. The problem is, the people who want these things don't want to have to amend the constitution. Because they know they can't. So they will use any means necessary to get what they want. Then defend such means as if it was intended all along.
It is just the typical elitist statist view of the world, just as what Gruber guy explained recently. Whatever you have to do to change the law is good, as long as you believe those changes are good. It is just your typical "the end justifies the means" view of the world that most people have.
Quote:
Originally Posted by TheCityTheBridge
Their decisions are authoritative, much like federal law passed by Congress and signed by the President. You are free to criticize federal law, but if you violate it then you are subject to applicable penalties. But the Court's decisions are limited to the Cases and Controversies before them. The Justices agree with each other on many things. Watch the great Scalia/Breyer videos posted by phma and you'll see a lot of agreement between these two ideological opposites.
All I really have to say about the rest of what you have to say is, Thomas Jefferson and John C. Calhoun. Both of them would disagree with your views. And both of them did disagree with your views. And Thomas Jefferson, as well as his "Democratic-Republicans", effectively controlled this nation from 1800 practically until the Civil War. When Abraham Lincoln decided that he would maintain the union by killing at least 650,000 Americans(and he would have been fine with killing a whole lot more).
Hell, even Andrew Jackson felt like he could ignore the Supreme Court whenever it suited him(IE John Marshall has made his decision, now let him enforce it).
In truth, this worship of the Supreme Court is a relatively new idea. Jefferson believed that the Supreme Court was there basically to just give their opinions to the states. But that the states and their courts could effectively ignore the rulings of the Supreme Court within their own jurisdiction(and they did).
It wasn't until Lincoln waged the most deadly war in American history that anyone actually started caring what the Supreme Court had to say. And that is only because they knew there was an army willing to kill anyone and everyone, standing behind them.
I think it is funny that you argue, on the one hand, that the death penalty and seatbelt laws restrict liberty, but that same-sex marriage and abortion should be unprotected as liberty interests under the Constitution.
I am actually opposed to any laws regarding marriage. I think marriage should be a "private matter" and not a civil matter. If it were up to me, I would strip away every government-created "privilege" regarding marriage.
Abortion is not a simple matter of liberty if you believe that "life starts at conception". If life begins at conception, then abortion is murder. Those who say life doesn't start at conception have to create a completely arbitrary definition for what life is. The one I usually hear is "life begins when the fetus can live on its own", or something of that nature.
The problem is, no one really believes in that definition.
The real definition for whether or not a fetus is a life or not, is simply a matter of whether or not the woman actually wants to keep it. If she wants to keep it, regardless of how developed it is, it is legally a life, and is protected by the same laws that protect everyone else. If she doesn't want to keep it, then it is not a life.
With that said, my views are somewhat complicated. I always imagine my views of the world being a reflection of "natural rights" theory. When I criticize things, what I'm really criticizing are things which I believe are "artificial" or "arbitrary".
I think "human reason" can allow us to agree on practically everything. And that is all that is truly necessary for the interactions with people. I always find the machinations of the state to be largely artificial, arbitrary, and irrational.
It reminds of this quote... "Virtually all reasonable laws are obeyed, not because they are the law, but because reasonable people would do that anyway. If you obey a law simply because it is the law, that’s a pretty likely sign that it shouldn’t be a law."
There was this article I read the other day about the difference between a "Law-enforcement officer" and a "peace officer".
As I mentioned before, my opinion is that the real object of the government is to "keep the peace". It is not simply to enforce laws. When I imagine a peace officer, I imagine a guy who doesn't want to punish anyone, he simply wants to prevent conflict. Something like Andy Griffith.
The problem with the police today, is that the police aren't there simply to keep the peace. They are there to enforce laws. In the case of some laws, they are actually there simply to "raise revenue" for the city/county/state by handing out a variety of tickets.
The problem with many of these laws, is that they simply aren't very reasonable. Which is why the vast majority of people simply ignore the laws. Even the police get to choose if they will enforce the laws.
It reminds me of this quote by HL Mencken....
"I have seen many theoretical objections to democracy, and sometimes urge them with such heat that it probably goes beyond the bound of sound taste, but I am thoroughly convinced, nonetheless, that the democratic nations are happier than any other. The United States today, indeed, is probably the happiest the world has ever seen. Taxes are high, but they are still well within the means of the taxpayer: he could pay twice as much and still survive. The laws are innumerable and idiotic, but only prisoners in the penitentiaries and persons under religious vows ever obey them. The country is governed by rogues, but there is no general dislike of rogues: on the contrary, they are esteemed and envied. Best of all, the people have the pleasant feeling that they can make improvements at any time they want to— . . . in other words, they are happy.... Democracy is a sort of laughing gas. It will not cure anything, perhaps, but it unquestionably stops the pain."
When I really begin looking at the world, our government, and the Supreme Court. All I'm really trying to do is understand them through this filter of "human reason".
The simplest example would be any 5-4 Supreme Court decision. Should that decision become "the law of the land"? Based on what principle?
Should that decision stand "forever"? Or just until the president appoints a new judge and the new court retries the case 5-4 the other way?
What does a 5-4 decision even do? If the job of the Supreme Court is to uphold the constitution. Does a 5-4 decision really uphold the constitution. If the job of the Supreme Court is to prevent tyranny of democracy. Does a 5-4 really prevent democratic abuse?
In my view, a 5-4 decision where the justices' decisions coincide perfectly with the political party who appointed them to office cannot possibly be a legitimate ruling. But if a 5-4 decision isn't legitimate, what is? Is a 6-3 legitimate? How about a 7-2? Or an 8-1?
If we are really looking at "principles". If a 5-4 decision isn't valid, then all decisions aren't valid. If the decisions of the Supreme Court aren't valid, then the Supreme Court isn't valid.
The only defense of the Supreme Court at that point, is not a matter of principle or justice. It becomes a matter of practicality. It is just someone saying "Yeah our government isn't perfect, but it is what we have, and we can't really change it, so we just have to accept it".
To me, that isn't good enough. And that sounds like something a "British loyalist" would have been saying circa 1775.
To me, anyone who simply accepts something they know is illegitimate,is nothing more than a slave. Of course, I think most people are fundamentally slaves. That isn't simply my opinion, that was the opinion of Thomas Jefferson as well. Who said "I prefer the tumult of liberty to the quiet of servitude.", as he was praising "rebellion".
Of course, I love Thomas Jefferson's comments on rebellion in our Declaration of Independence as well. It reminds me a bit of what I said about people just accepting things.
"All experience hath shewn that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
HL Mencken also had another great quote, which is basically the same as what Thomas Jefferson said on liberty.
"I believe that liberty is the only genuinely valuable thing that men have invented, at least in the field of government, in a thousand years. I believe that it is better to be free than to be not free, even when the former is dangerous and the latter safe. I believe that the finest qualities of man can flourish only in free air – that progress made under the shadow of the policeman’s club is false progress, and of no permanent value. I believe that any man who takes the liberty of another into his keeping is bound to become a tyrant, and that any man who yields up his liberty, in however slight the measure, is bound to become a slave."
I remember there was this quote about how, the founding fathers would be considered "Domestic terrorists" by the NSA. If our founding fathers would be considered radicals, crazies, or terrorists if they were actually in our time. What does that really say about us?
With that said, I really really really resent the government's arbitrary control over my life. And I think most other people agree with me.
On the other hand, if the changes that supporters of the living document theory want to have, followed the proper Constitutional amendment process. Then it at least brings legitimacy and principle to it. The problem is, the people who want these things don't want to have to amend the constitution. Because they know they can't. So they will use any means necessary to get what they want. Then defend such means as if it was intended all along.
The odd thing is that this defines the living document view for what it is, a walk around the document.
That Scalia could talk about principle and be taken serious is laughable. The SCOTUS has no ethics it is bound to follow which leaves them open to the highest bidder for their personal ideology. Scalia and Thomas being entertained by Billionaires and ruling in their favor puts the Kangaroo in the court. A bill introduced in congress to make them accountable through ethical standards never had support to pass. That makes congress by both parties just as despicable. The assault on liberty and the Bill of Rights is reduced to privilege for the people with rights to the government.
Human rights
fundamental rights, especially those believed to belong to an individual and in whose exercise a government may not interfere, as the rights to speak, associate, work, etc.
And the lefties on the court are pure as driven snow?
And the lefties on the court are pure as driven snow?
And are you stating that work is a "right"?
I think you are reading into my comment what you want it to mean. My opinion would more closely favor Scalia's rulings and methods. Not always though. I think the the interruption method has potential for rights to be removed from individuals easier. I'm faulting all of them on the court for not having prescribed or supporting ethics they should follow. My belief is that they should be above suspicion and conduct their activities on and off the court that way.
This is what you stated, Below ---- I have no idea where you got that or what you mean. The rights I was talking about are Human Rights but to put it more correctly the better term for my meaning would be Nature Rights which are not referred to in the constitution.
This is what I mean, you aren't being reasonable. Which is what bothers me; If people that seem as intelligent as you can't even be reasonable. No wonder the world is what it is.
You assume that only people who agree with you are being reasonable. And you did not address any of the points made in the links I posted about lethal injection, which suggests you are not open to analyzing alternate points of view.
Quote:
Originally Posted by Redshadowz
Two things. First, the way people were executed in 1787 was either by hanging, or by firing squad. Neither are "painless". So saying that lethal injection might be cruel because it isn't painless is a useless argument. Don't make it.
Secondly, not only does everyone know that lethal injection is far less painful than being hung or being shot to death. But when given the choice, those who are actually being executed always choose lethal injection. Why? Because they know lethal injection is "less cruel" than the alternatives. Something less cruel than something else which isn't considered cruel, cannot be considered cruel.
Regardless, what I'm appealing to is "human reason". Everyone knows that lethal injection is "more humane" than the alternatives. It isn't painless, but it is far less painful than any other method. Therefore it can't be "more cruel" than hangings. Therefore it cannot be unconstitutional.
The only people who would possibly make the argument you are attempting to make are people who are already opposed to the death penalty. It isn't a reasonable argument. And it only appeals to those people who are looking for the vaguest reason to justify their opposition to the death penalty. Basically, they are too compromised by their emotions that they can no longer think rationally.
If you cannot even bring yourself to agree with me that lethal injection cannot possibly be unconstitutional. Then not only are you being irrational and a waste of my time. But you are effectively making a statement that we should bring back hangings. I highly doubt that is what you want. So please, start being reasonable.
The Constitution prohibits cruel and unusual punishment. It does not prohibit the death penalty, and the ratifiers likely thought the death penalty was permissible under the Constitution. That does not mean that the clause prohibiting cruel and unusual punishment is meaningless. It would not be in the Constitution if it were meaningless.
If you had read my links, you would have seen that a study of capital punishment has found that lethal injections are botched at more than twice the rate of all other types of capital punishment used in the United States from 1890-2010. Those botched injections involve agony in the prisoner for extended periods of time. Severe chemical burns, extended convulsions, and extended breathing difficulty are all results of the drugs used in lethal injections.
There is a practical problem that states are using drugs of questionable provenance due to pharmaceutical companies refusing to provide these drugs for executions. There is a moral problem that this method needs medically-skilled technicians, but that it also violates every professional code of medical ethics.
So no, I don't think that questioning the constitutionality of lethal injection is unreasonable.
Quote:
Originally Posted by Redshadowz
All I ask is for people to be reasonable. Why is it so hard?
Look, do you know why our Constitution was created? Do you know why the Articles of Confederation was "insufficient"? Do you know why the Federalist papers were created?
You, and most other people, imagine that the Articles created this weak government that no one liked. And that we all just woke up one day and realized that what we actually wanted was a "strong central government". This view would imagine that the states were eager and willing to hand nearly unlimited authority to the central government on basically every single issue.
That conception of history is just completely absurd. The reality was that, most of the states didn't even want to get rid of the Articles of Confederation even after Shay's Rebellion(which was the trigger for the Philadelphia Convention). Many of them thought they would even be better off "going it alone". On top of that, the Philadelphia convention wasn't originally intended for the purpose of creating an entirely new constitution. The delegates were only sent to make minor changes to the Articles of Confederation.
I know a considerable amount about the drafting of the Constitution and its ratification. Once drafted, the Constitution represented a dramatic departure from the Articles of Confederation and it centralized considerably more power in the central government than the articles had.
Quote:
Originally Posted by Redshadowz
Even when the Constitution was eventually drafted at the Convention. It took nearly two years of debating in every single state for all of the states to finally ratify the new Constitution. The Federalist papers are merely James Madison and Alexander Hamilton trying to defend the document they drafted. Especially the particulars of its necessity, as well as its limitations, against its critics "The anti-federalists".
If you contrast the concerns of the Anti-Federalists with the arguments of the Federalists. You can begin to understand what the constitution was at least "sold as" by its creators.
I really like this article. You can certainly consider me an "anti-federalist".
The anti-federalists lost. The Constitution is federalist.
Quote:
Originally Posted by Redshadowz
Regardless, the more important question is, "Why was the Constitution created"? Well that is simple. There is only one reason why the constitution was created "To keep the union together".
In fact, keeping the union together was an issue not only in 1787, but it was continually a problem until Lincoln crushed the south in the Civil War. And many might even say that it is still a problem.
The important question, for the courts, is "what does the Constitution mean?" To answer that question, courts apply the interpretive theories developed by scholars and other judges.
Quote:
Originally Posted by Redshadowz
The powers granted to the Federal government by our Constitution, were the tiny number of powers deemed "absolutely necessary for the continuation of the union". These powers can really be broken down into two groups. The powers granted to the Federal government to interact with and defend America from foreign nations. And the powers granted to the Federal government to basically prevent the individual states from trying to slit each others throats.
The powers granted to Congress are limited in number, but they are effective and powerful. The power to tax is the power to destroy, and it is specifically granted to Congress. The power to spend is the power to create, and it is granted to Congress. The power to regulate interstate and international commerce, taken with the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof," grants Congress wide-ranging authority. As a practical matter, the primary limits on Congress are 1) political--the nature of democratic representation in the legislature, 2) the checks of the President on legislation, and 3) the limitations of the bill of rights along with the 14th Amendment.
Quote:
Originally Posted by Redshadowz
Basically, the real object of the creation of our constitution, was to give the Federal government the "powers of mediation". So that the states could "get along" with each other. Secondly, it created the presidency effectively as a model of George Washington(who would become the first president). The president(IE the Executive) would be the commander of the US military, as well as being responsible for foreign relations(IE treaties).
The object of the Constitution was to constitute a new federal government. Congress' powers are explicitly identified. The President has "the Executive Power," which is not nearly as constricted as the power granted to Congress. In addition to the Executive Power, the President has military and foreign affairs powers, the appointment power, and power to adjourn Congress or, in extraordinary circumstances, to convene Congress. But the Executive power is the first mentioned and has no further explanation of its nature.
Quote:
Originally Posted by Redshadowz
In fact, I often say that the entire purpose of all "legitimate" governments is to be the mediator of disputes. Its actions are only justified if its intentions are to "help us all get along more peacefully". The first governments were really just "courts". The "chiefs" of the indigenous tribes acted like judges. In fact, the job of the old Kings in the bible was to act as judge in the event of a dispute.
That is not the entire purpose of the United States government in the Constitution. Congress is explicitly instructed to provide for the Common Defense and the General Welfare.
Quote:
Originally Posted by Redshadowz
The government is supposed to be an "unbiased third-party", who is there to provide justice. You know the old saying "Justice is blind".
When our government departs from this course of impartiality, or the desire to maintain the peace. Then it becomes illegitimate. Especially if that "peace" is merely the result of force, coercion, or violence(IE the Civil War).
You make it sound like you support the confederacy. And you have not recognized their crimes against humanity.
Quote:
Originally Posted by Redshadowz
My major objection against the Living Document theory is less an absolute objection, and more an "appeal to reason". What I mean by that is, I believe that the Living Document theory does far more harm than any good. Especially in that it divides us through its inconsistent and arbitrary nature. And further, it hands far too much authority over our society into the hands of a small number of unelected, life-termed men. In a sense we make them kings, or czars, or other potentates. And by doing so, we sow the seeds of anger and discontent. Which can easily boil over into violence and destruction.
The authority to interpret the Constitution rests in the courts under the Constitution itself. Judges are not all men (not even Supreme Court Justices). In our system of government, courts have several responsibilities--1) to make just decisions for the parties before them, 2) to interpret the law, 3) to protect individual rights, 4) to promote judicial economy, 5) to apply just, clear, and understandable legal principles, 6) to consider the effect of their decisions upon future parties or upon the justice system more broadly.
Quote:
Originally Posted by Redshadowz
If we look at probably the most controversial Supreme Court case in history, Roe v. Wade. How is it remotely possible that such a decision does anything to provide justice? Or even a perception of justice. That court case is not only obviously wrong, and would have obviously been opposed by every state in the union in 1787. But it actually divides this country and creates the kind of hatred and violence where people are even getting killed as a result.
Roe v. Wade is not the most controversial Supreme Court case in history. Plessy v. Ferguson and Dred Scott are far more controversial. Bush v. Gore is also, to many, more controversial than Roe v. Wade.
You think that Roe is obviously wrong. Some people agree with you, but other people disagree. Roe stands for the proposition that there are rights to medical privacy, between a woman and her doctor, including the right to decide to terminate a pregnancy. Under that case, the state's interest in the fetus does not override the right to medical privacy until, at the earliest, fetal viability. The case itself does not create the division, but the conflict between these two interests creates that division. The case makes a legal determination about what laws the government can pass and enforce.
Quote:
Originally Posted by Redshadowz
How does the Supreme Court's Obamacare ruling unite the country or provide justice? Especially knowing now how many times Obama and Co. lied to us to get it passed in the first place.
The last major decision on guns rights that I'm aware of was "McDonald v. Chicago". It came down to a 5-4 decision. Had it gone the other way, I can't imagine what would have happened.
In my view, the only current issue so important to the American people, that an infringement of such right would cause this country to literally "fall apart", is the second amendment. Yet, the liberals, and their liberal members on the Supreme Court make a constant attack against it at their own folly.
You dislike the ACA, but it is evidently constitutional under the standards of jurisprudence evaluating acts of Congress applicable for the last ~80 years.
Had McDonald gone the other way, then cities and states requiring registration of firearms would be able to enact and enforce those requirements. Cities and states that did not want to require registration would not have been forced to. Note that registration does not ban the ownership, possession, or use of a firearm. An originalist would likely not find that registration is constitutionally prohibited.
Quote:
Originally Posted by Redshadowz
The point is, the living document theory is not only completely illogical, it is also incredibly dangerous. And it is my opinion that there is no way the Supreme Court could have gotten away with half the rulings it has handed down, had it not been for the Civil War creating the "Supremacy(tyranny) of force" against the states and the people. At one time, the people and the states were far more willing to stand up to obviously biased and corrupt Supreme Court decisions. Even in a time where the Federal government actually overtly threatened them.
And again, here is your confederate sympathy. Slavery was a crime against humanity. States are not entitled to secede from the union. The union's response was fully justified.
Quote:
Originally Posted by Redshadowz
On the other hand, if the changes that supporters of the living document theory want to have, followed the proper Constitutional amendment process. Then it at least brings legitimacy and principle to it. The problem is, the people who want these things don't want to have to amend the constitution. Because they know they can't. So they will use any means necessary to get what they want. Then defend such means as if it was intended all along.
The supporters of the "originalist" theory, such as yourself, could follow the constitutional amendment process to ban abortion or the registration of guns. But you know you can't do that, so you try to defend it as if it was intended all along.
Quote:
Originally Posted by Redshadowz
All I really have to say about the rest of what you have to say is, Thomas Jefferson and John C. Calhoun. Both of them would disagree with your views. And both of them did disagree with your views. And Thomas Jefferson, as well as his "Democratic-Republicans", effectively controlled this nation from 1800 practically until the Civil War. When Abraham Lincoln decided that he would maintain the union by killing at least 650,000 Americans(and he would have been fine with killing a whole lot more).
I'll stick with Chief Justice Marshall, Justice Jackson, Justice Marshall, and Justice Ginsberg. You can keep the 18th/19th century slaveowners.
Quote:
Originally Posted by Redshadowz
Hell, even Andrew Jackson felt like he could ignore the Supreme Court whenever it suited him(IE John Marshall has made his decision, now let him enforce it).
Andrew Jackson was a genocidaire before the term was coined, though your quote is not accurate. The actual quote states that the decision is stillborn and Georgia refuses to obey. The case Jackson was discussing did not oblige Jackson, as President, to do anything. It required Georgia to free an individual convicted of being present on Cherokee land in violation of a state law prohibiting non-Cherokee from being on Cherokee land. The Court's ruling stated that the state's law was unconstitutional because only the federal government had any authority over tribal lands.
Quote:
Originally Posted by Redshadowz
In truth, this worship of the Supreme Court is a relatively new idea. Jefferson believed that the Supreme Court was there basically to just give their opinions to the states. But that the states and their courts could effectively ignore the rulings of the Supreme Court within their own jurisdiction(and they did).
It wasn't until Lincoln waged the most deadly war in American history that anyone actually started caring what the Supreme Court had to say. And that is only because they knew there was an army willing to kill anyone and everyone, standing behind them.
The Court is not worshiped. You are building a strawman. And it is unclear how you suppose that the Civil War was fought on behalf of the Supreme Court. I think that perspective makes no sense.
Quote:
Originally Posted by Redshadowz
I am actually opposed to any laws regarding marriage. I think marriage should be a "private matter" and not a civil matter. If it were up to me, I would strip away every government-created "privilege" regarding marriage.
You may be opposed, but every state in the union, and the federal government, has laws regulating marriage. It is not up to you, but to the democratic process, subject to checks including Equal Protection of law.
Quote:
Originally Posted by Redshadowz
Abortion is not a simple matter of liberty if you believe that "life starts at conception". If life begins at conception, then abortion is murder. Those who say life doesn't start at conception have to create a completely arbitrary definition for what life is. The one I usually hear is "life begins when the fetus can live on its own", or something of that nature.
The problem is, no one really believes in that definition.
The real definition for whether or not a fetus is a life or not, is simply a matter of whether or not the woman actually wants to keep it. If she wants to keep it, regardless of how developed it is, it is legally a life, and is protected by the same laws that protect everyone else. If she doesn't want to keep it, then it is not a life.
You believe abortion is murder. Other people disagree with you. Why do you think the State should be able to take away someone else's right to an abortion, but that the State should not be able to take away your right to drive a car without a seatbelt?
Quote:
Originally Posted by Redshadowz
With that said, my views are somewhat complicated. I always imagine my views of the world being a reflection of "natural rights" theory. When I criticize things, what I'm really criticizing are things which I believe are "artificial" or "arbitrary".
I think "human reason" can allow us to agree on practically everything. And that is all that is truly necessary for the interactions with people. I always find the machinations of the state to be largely artificial, arbitrary, and irrational.
It reminds of this quote... "Virtually all reasonable laws are obeyed, not because they are the law, but because reasonable people would do that anyway. If you obey a law simply because it is the law, that’s a pretty likely sign that it shouldn’t be a law."
You and I certainly do not agree on everything.
Quote:
Originally Posted by Redshadowz
There was this article I read the other day about the difference between a "Law-enforcement officer" and a "peace officer".
As I mentioned before, my opinion is that the real object of the government is to "keep the peace". It is not simply to enforce laws. When I imagine a peace officer, I imagine a guy who doesn't want to punish anyone, he simply wants to prevent conflict. Something like Andy Griffith.
The problem with the police today, is that the police aren't there simply to keep the peace. They are there to enforce laws. In the case of some laws, they are actually there simply to "raise revenue" for the city/county/state by handing out a variety of tickets.
The problem with many of these laws, is that they simply aren't very reasonable. Which is why the vast majority of people simply ignore the laws. Even the police get to choose if they will enforce the laws.
We would probably both agree that 65 mph on an interstate highway is an unnecessarily low speed limit. We would probably agree that people should not drive 110 on an interstate highway. Lots of people disagree on the appropriate place to place the limit. You might even think the law should be "don't drive unreasonably fast on the road." The problem with such a law is that it is highly subjective, and unpredictable. Setting a specific speed limit makes the law itself objective, so everyone knows if they are following it or not. Each method has advantages and disadvantages.
A choice by a patrol officer not to pull someone over for going 70 in a 65 does not mean the law is not violated. It is a reflection of the patrol officer's discretion in enforcing the law (which is a subject that itself has advantages and disadvantages, but is far afield from the subject of this thread).
Quote:
Originally Posted by Redshadowz
When I really begin looking at the world, our government, and the Supreme Court. All I'm really trying to do is understand them through this filter of "human reason".
The simplest example would be any 5-4 Supreme Court decision. Should that decision become "the law of the land"? Based on what principle?
Should that decision stand "forever"? Or just until the president appoints a new judge and the new court retries the case 5-4 the other way?
What does a 5-4 decision even do? If the job of the Supreme Court is to uphold the constitution. Does a 5-4 decision really uphold the constitution. If the job of the Supreme Court is to prevent tyranny of democracy. Does a 5-4 really prevent democratic abuse?
In my view, a 5-4 decision where the justices' decisions coincide perfectly with the political party who appointed them to office cannot possibly be a legitimate ruling. But if a 5-4 decision isn't legitimate, what is? Is a 6-3 legitimate? How about a 7-2? Or an 8-1?
If we are really looking at "principles". If a 5-4 decision isn't valid, then all decisions aren't valid. If the decisions of the Supreme Court aren't valid, then the Supreme Court isn't valid.
The only defense of the Supreme Court at that point, is not a matter of principle or justice. It becomes a matter of practicality. It is just someone saying "Yeah our government isn't perfect, but it is what we have, and we can't really change it, so we just have to accept it".
To me, that isn't good enough. And that sounds like something a "British loyalist" would have been saying circa 1775.
The Supreme Court exists to decide cases before it--that is its job. Sometimes those cases result in close decisions. That does not mean that the Court is invalid. Any such claim is sophistry. Most cases are not decided 5-4. Most 5-4 decisions are not "on party lines." You are trying to take a tiny minority of the Court's cases and use them as an illustration that the Court is indefensible. You construct a series of logical fallacies and your argument is unpersuasive.
Quote:
Originally Posted by Redshadowz
I remember there was this quote about how, the founding fathers would be considered "Domestic terrorists" by the NSA. If our founding fathers would be considered radicals, crazies, or terrorists if they were actually in our time. What does that really say about us?
With that said, I really really really resent the government's arbitrary control over my life. And I think most other people agree with me.
So why would you demand that the government exert control over others (in same-sex marriage and abortion)?
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