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I think that we should try hard to (at least generally) follow the original intent of the U.S. Constitution.
Else, I am concerned that there could theoretically be a problem with judges redefining laws based on their own views.
In addition, the U.S. Constitution has an amendment process, so it is not like it is completely inflexible and/or unachangeable.
I could be mistaken on this, but weren't most of the things which made the U.S. a better place done using the Constitutional Amendment process back in the old days, in contrast to judges often "legislating from the bench" during the last several decades or so?
The Constitution includes many terms that are not clearly defined, or that would have been understood differently in 1789 than today. For example, what, precisely, is the General Welfare? Does "arms" in the 2nd Amendment mean, using the definition of 1789, swords, knives, and muskets? I would say that the Civil Rights Act made the U.S. a better place, but that is a statute, not an Amendment. Many statutes have been passed that make the U.S. a better place.
Quote:
Originally Posted by elamigo
In the past the Supreme Court was not the ultimate word. Actually, Congress or the President did not have to follow a decision if a decision was violating the Constitution.
The Supreme Court was established to ensure the Federal Government follows the Constitution.
Anything not listed as a duty of the Federal Government belonged to the states to decide.
Some will argue that the 13th, 14th amendments changed that. That is not true if you read what was the intent and topic argued when those amendments were approved.
Separation of Church and state is another issue. Even though I agree with a few points espoused by many today, I am not going to claim that the Constitution had that intent. It did not. There are some out there that are honest enough to say that is the case but agree with it being violated. The historical record does not support the interpretation people give to those Jefferson words. They were actually twisted around.
The Supreme Court was established in the Constitution. It is simply not true that the Supreme Court was not the final interpreter of the Constitution. It has been so from the very beginning (Marbury v. Madison, as noted elsewhere in this thread).
The 14th requires the States to respect the Due Process rights of American citizens. The Court has interpreted that to require the States to respect certain portions of the Bill of Rights, in addition to their other obligations under the 14th Amendment.
The Separation of Church and State, as mentioned elsewhere in this thread, is shorthand for "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Quote:
Originally Posted by markg91359
5. The Founding Fathers had enough wisdom to realize that the document they were framing would have to be meet the needs of a growing and vibrant nation. Why do you think they used short and vague phrases in most of document? Phrases like "due process", "equal protection of the law", or "regulate commerce among the states" were deliberately written this way to provide for some latitude in how they would interpreted. Otherwise, the framers realized the document they wrote would become irrelevant in a short period of time. I submit that the reason we have kept the Constitution we wrote in 1789 is because of our ability to interpret it.
The Founding Fathers didn't know where we would end up. However, I submit that most of them had no intention of forever chaining us to the way things were in 1789. Otherwise, the document they wrote would have been longer and more specific.
I'm with you on most of your points. I'm not sure I agree that Due Process was vague when adopted. It was a concept of English common law long prior to establishment of the Constitution (first used in the mid 1300s). Equal Protection come from 14th Amendment, and was certainly intended to protect freed slaves from the State and local governments of the South (although the language is much broader than that purpose). I do agree, though, that terms like "regulate commerce," "general welfare," and others are purposefully vague. I suspect that the reason was less for wisdom than it was for the political expediency of creating a workable frame for getting parties with competing interests to agree on the document.
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Originally Posted by Unsettomati
However, what does 'bear' mean? Not the animal, but to wield? That's a thornier question - and since most of those in Congress who voted to send the Bill of Rights to the States, not to mention most state legislators who voted to ratify it, left no trace of what they thought it meant, we're back at the point where we must concede that for most of the creators of the Bill of Rights (and they number in the hundreds) there is no trace of their thoughts on that.
But it gets even better. What are 'arms'? And how can we possibly shoehorn the views of even those few elected officials who voted in favor of the Bill of Rights, and left us a record of their views on that word, into modern arms that they never even imagined would come into being?
To say nothing of how, if at all, those other clauses modify the phrase:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
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Originally Posted by DauntlessDan
Yes....these days too many look at the U.S. Constitution as something to use to line their birdcage. That's how much importance it has to them. Unless the argument has to do with one of their pet issues. Be it 2nd amendment, 4th amendment, 1st amendment or the body of the constitution itself. I personally think that the WHOLE document is important including the amendments and needs to be read and studied by elementary, high school, college and especially law school students. The readers will discover certain phrases like "separation of church and state" do not appear therein.
Law school students usually take two full classes on the Constitution. See Const., 1st Amendment.
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Originally Posted by Wudge
We, the people, have allowed our Imperial Judiciary (Supreme Court) to usurp the Constitution's Amendment power that the Constitution entrusted to We, the people.
For example, the issue of abortion was decided by Supreme Court in Roe v. Wade, not by America following the Constitution's Amendment process. Rather than follow the Constitution, We, the people permitted nine individuals to act as God and direct America on the most sacred of issues; i.e., life itself. If our Constitution still functioned as designed, then a Constitutional amendment would assuredly have been framed that would have failed to be ratified.
The Supreme Court has the power to interpret the Constitution. In Roe v. Wade the Court recognized that the Constitution respects a right to privacy that is violated by absolute abortion restrictions (because of the right to privacy, restrictions on the right must be subject to strict scrutiny, which absolute restrictions fail). Where is the right to privacy? Maybe it's in the 9th Amendment, maybe the 14th, maybe it emanates from the "penumbra" of the Bill of Rights.
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Originally Posted by markg91359
The Supreme Court didn't really usurp anything. They stepped into a void that was either created accidentally or intentionally by the framers of the Constitution. Actually, if people were really opposed to the Supreme Court assuming this power, you've just stated the very solution for fixing it. Simply get a Constitutional amendment passed and ratified that takes away the power of the Supreme Court to interpret the Constitution. Beware though, you'll have to spell out exactly what happens when questions about what the document means arise.
I won't hold my breath for this to happen. A majority of Americans don't want Roe v. Wade overturned. A large majority of our country is quite happy with the Supreme Court interpreting the Constitution. The Judicial Branch of government gets higher ratings from the American people than either the Legislative or Executive Branches do.
In fact, the Constitution does entrust the Constitution to the Court:
"The judicial Power of the United States, shall be vested in one supreme Court."
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States."
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Originally Posted by Jeerleader
True, but people forget that in Marbury the Court laid the ground rules for them to "open" the Constitution. It isn't putty in the hands of the Judiciary to make the law what it wants it to be and in Marbury, SCOTUS makes clear that the Constitution is not a living document that shape shifts over time. Marbury is clear that the Constitution is the inviolate rules for all government including SCOTUS, as it says:
"it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"
That would lead me to believe that there can be "unconstitutional" SCOTUS decisions . . .
You are not accurately reflecting Marbury, or the Marshall Court's understanding of the Constitution. Marbury clearly recognizes the power of the Court to perform judicial review.
"It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions."
The Marshall Court will go on to find, in McCulloch v. Maryland, that:
"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language."
And, "[w]e must never forget that it is a constitution we are expounding."
In McCulloch, we can see Marshall as the ideological father of the "living Constitution." While Judges are, of course, bound by the Constitution, the document itself is not so rigid as to prevent interpretation and to permit the Legislature to choose the means to fulfill its legitimate purposes.
Quote:
Originally Posted by Wudge
Where in the Constitution is it stated that the Supreme Court is the arbitrator of the Constitution?
Where in the Constitution is it stated that the Supreme Court has the power of judicial review?
(The 10th Amendment is part of the Constitution.)
Art. III, Sec. 2 for Supreme Court as arbitrator of the Constitution. Art. III, Secs. 1 & 2 for judicial review.
Quote:
Originally Posted by Wudge
Indeed, the Constitution is the highest law of the land. It granted 18 enumerated powers to the government (Article 1. Section 8). If the government wanted additional power, it needed to obtain the wished for power via a Constitutional Amendment (revise the Constitution).
The Constitution did not enumerate the power of Judicial review to the Supreme Court. The Supreme Court recognized this truth, which is why the Supreme Court found it necessary to so self proclaim and usurp that power in Marbury v. Madison.
The Constitution granted 18 enumerated powers to Congress in Art. I, Sec. 8 (more than that, actually, as several clauses include multiple powers). The President also has "[t]he Executive Power," the Commander-in-Chief Power, the Treaty Power, the Department Opinion Power, the Pardon Power, the Appointment Power, and the Recess Appointment Power.
And the Court has "[t]he judicial power of the United States." Marbury was not a usurpation, but an expounding of the judicial power.
Quote:
Originally Posted by Wudge
If the Supreme Court was vested with the power of Judicial review via the Constitution, then the Justices could have simpy referred to it instead of self-proclaiming such to be the case and usurping the power in Marbury v. Madison. Of course, the Justices did not reference any such clause because it does not exist. Nor is Judicial review one of the eightteen enumerated powers in Article 1, Section 8, nor is it cited anywhere else in the Constitution.
HTH
Art. I deals with the powers of Congress. Art. III deals with the powers of the Court.
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Originally Posted by WhipperSnapper 88
Actually, the power of the Supreme Court to interpret the Constitution i.e. Judicial Review, is not explicitly spelled out in the Constitution. Rather, it is inferred.
It is not clearly delineated, but it is very clearly present.
Quote:
Originally Posted by WhipperSnapper 88
Please cite the article or clause in the Constitution that grants SCOTUS this authority????
On the subject of constitutional interpretation, Jefferson wrote: “The Constitution on which our Union rests, shall be administered … according to the safe and honest meaning contemplated by the plain understanding of the People of the United States at the time of its adoption – a meaning to be found in the explanations of those who advocated it. … On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
Jefferson also wrote: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
The biggest problem we have with our Constitution is the Judiciary Branch, the framers of the Constitution were very concerned with this, this was one reason why Federal Judges are appointed and not elected, Federal Judges and Judges of the Supreme Court are suppose to have no political ties. When they do they become the most dangerous branch of the government.
Jefferson warned of such a time: The greatest threat to the Rule of Law and constitutional limitations on central government was an unbridled judiciary: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
On the subject of constitutional interpretation, Jefferson wrote: “The Constitution on which our Union rests, shall be administered … according to the safe and honest meaning contemplated by the plain understanding of the People of the United States at the time of its adoption – a meaning to be found in the explanations of those who advocated it. … On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
Jefferson also wrote: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
No surprise that a President would criticize a branch that can limit his power, but over which he has limited political influence.
Quote:
Originally Posted by Terryj
The biggest problem we have with our Constitution is the Judiciary Branch, the framers of the Constitution were very concerned with this, this was one reason why Federal Judges are appointed and not elected, Federal Judges and Judges of the Supreme Court are suppose to have no political ties. When they do they become the most dangerous branch of the government.
Jefferson warned of such a time: The greatest threat to the Rule of Law and constitutional limitations on central government was an unbridled judiciary: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
I think that the apolitical nature of the judiciary comes mostly from their lifetime appointment--the fact of appointment occurs because judges are picked and confirmed by the political branches. But lifetime appointment allows them to operate without the continued scrutiny of the political branches. Jefferson was nothing if not an Imperial President. He, of course, believed that no other branch should unduly interfere with his own.
We had a judge here in Texas, name of Justice, who acted as an imperialist. He literally ruled many school districts, cities, etc with judicial rulings that cities and schools were afraid to fight due to costs. It wasn't until politicians finally stood up and said enough that appeals courts and finally SCOTUS finally overruled his actions and he retired. Then there is the 9th Circuit Appeals Court that has the dubious distinction of being the most over-ruled court.
Life-time appointments are a very bad idea. There should be time frames and age limits. As to political appointments. Look at Sotomayer (sp) and Ginsberg on the SC.
The Constitution includes many terms that are not clearly defined, or that would have been understood differently in 1789 than today. For example, what, precisely, is the General Welfare? Does "arms" in the 2nd Amendment mean, using the definition of 1789, swords, knives, and muskets? I would say that the Civil Rights Act made the U.S. a better place, but that is a statute, not an Amendment. Many statutes have been passed that make the U.S. a better place.
The Supreme Court was established in the Constitution. It is simply not true that the Supreme Court was not the final interpreter of the Constitution. It has been so from the very beginning (Marbury v. Madison, as noted elsewhere in this thread).
The 14th requires the States to respect the Due Process rights of American citizens. The Court has interpreted that to require the States to respect certain portions of the Bill of Rights, in addition to their other obligations under the 14th Amendment.
The Separation of Church and State, as mentioned elsewhere in this thread, is shorthand for "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
I'm with you on most of your points. I'm not sure I agree that Due Process was vague when adopted. It was a concept of English common law long prior to establishment of the Constitution (first used in the mid 1300s). Equal Protection come from 14th Amendment, and was certainly intended to protect freed slaves from the State and local governments of the South (although the language is much broader than that purpose). I do agree, though, that terms like "regulate commerce," "general welfare," and others are purposefully vague. I suspect that the reason was less for wisdom than it was for the political expediency of creating a workable frame for getting parties with competing interests to agree on the document.
To say nothing of how, if at all, those other clauses modify the phrase:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Law school students usually take two full classes on the Constitution. See Const., 1st Amendment.
The Supreme Court has the power to interpret the Constitution. In Roe v. Wade the Court recognized that the Constitution respects a right to privacy that is violated by absolute abortion restrictions (because of the right to privacy, restrictions on the right must be subject to strict scrutiny, which absolute restrictions fail). Where is the right to privacy? Maybe it's in the 9th Amendment, maybe the 14th, maybe it emanates from the "penumbra" of the Bill of Rights.
In fact, the Constitution does entrust the Constitution to the Court:
"The judicial Power of the United States, shall be vested in one supreme Court."
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States."
You are not accurately reflecting Marbury, or the Marshall Court's understanding of the Constitution. Marbury clearly recognizes the power of the Court to perform judicial review.
"It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions."
The Marshall Court will go on to find, in McCulloch v. Maryland, that:
"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language."
And, "[w]e must never forget that it is a constitution we are expounding."
In McCulloch, we can see Marshall as the ideological father of the "living Constitution." While Judges are, of course, bound by the Constitution, the document itself is not so rigid as to prevent interpretation and to permit the Legislature to choose the means to fulfill its legitimate purposes.
Art. III, Sec. 2 for Supreme Court as arbitrator of the Constitution. Art. III, Secs. 1 & 2 for judicial review.
The Constitution granted 18 enumerated powers to Congress in Art. I, Sec. 8 (more than that, actually, as several clauses include multiple powers). The President also has "[t]he Executive Power," the Commander-in-Chief Power, the Treaty Power, the Department Opinion Power, the Pardon Power, the Appointment Power, and the Recess Appointment Power.
And the Court has "[t]he judicial power of the United States." Marbury was not a usurpation, but an expounding of the judicial power.
Art. I deals with the powers of Congress. Art. III deals with the powers of the Court.
It is not clearly delineated, but it is very clearly present.
Art. III, Secs. 1 & 2.
The Supreme Court most certainly did usurp the power of judical review regarding what is Constitutional.
And I am now going to repost most of what I stated in a prior post (#49) in this thread.
"Granting the Supreme Court the power of judicial review is not in the Constitution. Moreover, it's not in any document that has any legal authority, anywhere. The Supreme Court usurped that power without any legal authority to do so whatsoever.
The States approved the Constitution. The States should have decided the issue of Judicial review, and they still should decide it.
Moreover, Congress clearly was granted the power to make and pass laws. There is absolutely no reason to think that the Supreme Court has a better understanding of what is Constitutional than Congress itself, especially given the Supreme Court's abysmal record of overturning it's own decisions.
Further, the Constitution provides for three separate but equal branches of Government. The Founding Fathers never intended for one branch to have final power over what is or is not Constitutional. And as I pointed out in an earlier post, that means the 10th Amendment establishes who has the power to decide that issue. To wit: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Those who drafted the Constitution had a real concern of the Judicial Branch and of the potential problem it could bring IF it sided with either of the other two branches of government:
In Federalist No. 78, Alexander Hamilton wrote, “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment. … Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In Federalist No. 81, Hamilton declared, “There is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution. … The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Yet this non-existent “spirit” is the essence of the so-called “living constitution,” as amended by judicial diktat rather than its prescribed method in Article V.
It seems that the fears the founding fathers had about a despotic judicial system were not unfounded.
Those who drafted the Constitution had a real concern of the Judicial Branch and of the potential problem it could bring IF it sided with either of the other two branches of government:
In Federalist No. 78, Alexander Hamilton wrote, “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment. … Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In Federalist No. 81, Hamilton declared, “There is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution. … The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Yet this non-existent “spirit” is the essence of the so-called “living constitution,” as amended by judicial diktat rather than its prescribed method in Article V.
It seems that the fears the founding fathers had about a despotic judicial system were not unfounded.
Exactly, 5-4 Supreme Court rulings have basically taken the place of Constitutional Amendments. For the author of a proposal to get what they want no longer requires that the States ratify an Amendment. Instead, all they need is 5 Justices to lean their way.
That's one view.
Another is that the Court was inserted into a vacuum.
If the Congress (or We The People ftm) were actually offended by this event...
there have been COUNTLESS opportunities to do something about it.
to date the only truly offended parties seem to be those proven to be
on the wrong side of civil progress and justice.
You are assuming that largely people understood what took place and recognized that final approval effectively raised the Supreme Court above the other two branches of government.
Moreover, you are also assuming that "to date the only truly offended parties seem to be those proven to be on the wrong side of civil progress and justice." The logical fallacy of begging the question (assuming what you wish to prove) is out and about today. It hardly wears well on people who would allege to be "rational".
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