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... First, slavery required an amendment to be abolished, the 13th amendment. Which made it very clear that slavery was abolished. Women were only granted the right to vote with the 19th amendment. America can certainly correct its past mistakes; The question is whether its appropriate to give unlimited power to interpret the Constitution to a small tribunal of unelected, life-termed men on the Supreme Court?
If WE as Americans want same-sex marriage, all that it requires is for us to simply change the law. And at worst, we could do what we used to do, pass an amendment ...
My response:
It is altogether proper and fitting that the Judicial branch of government protect the rights of minorities. Do gay and lesbian people constitute a legally recognized minority? That is for the court to decide.
In 6th or 7th grade we all learn in civics class that there are the three branches, and two can overcome an act promulgated by one. The president can veto legislation by congress. Congress can over-ride a president's veto. The Supreme court can declare legislation unconstitutional. The legislative branch can overcome a SCOTUS ruling by passing an amendment to the Constitution.
We live in a republic that is not a pure democracy. In other words, popular vote does NOT decide everything in this country. There is such a thing as "The Tyranny Of The Majority."
However, as powerful as it is, the Supreme Court is not always the last word. Constitutional Amendment can overrule the Supreme Court.
So ... if we Americans DON'T want same sex marriage, all that is required is simply changing the law by passing a constitutional amendment.
Sen. Ted Cruz has already drafted such an amendment. Did you know that?
It is altogether proper and fitting that the Judicial branch of government protect the rights of minorities. Do gay and lesbian people constitute a legally recognized minority? That is for the court to decide.
In 6th or 7th grade we all learn in civics class that there are the three branches, and two can overcome an act promulgated by one. The president can veto legislation by congress. Congress can over-ride a president's veto. The Supreme court can declare legislation unconstitutional. The legislative branch can overcome a SCOTUS ruling by passing an amendment to the Constitution.
We live in a republic that is not a pure democracy. In other words, popular vote does NOT decide everything in this country. There is such a thing as "The Tyranny Of The Majority."
Look, no one hates tyranny of the majority more than I do. But why isn't the Supreme Court, ruling in a 5-4 decision, simply another kind of tyranny of the majority?
If you honestly believe that "The Supreme Court knows best", why not just make them dictators of America? Why bother passing laws at all? Just have them issue decrees, and then if we want to overturn their decrees, we can then just pass an amendment.
Sound ridiculous?
Secondly, what you learned in Civics class is largely just another American myth. The Constitution never actually created such an elegant system that you imagine.
First, the legislative branch could feasibly run the entire show. In fact, most of the founding fathers actually believed that the Legislative branch should effectively hold all the power.
And as many realize, the Supreme Court did not originally have the power of Judicial Review. That didn't come until 1803. Nor does the Constitution create a structure for the Supreme Court. There were originally only six Supreme Court justices, then at one point there were ten justices. And at any point in time, the Congress could change the law and appoint as many new Justices as they wanted to. This nearly happened in the 1930's with something called "The switch in time that saved nine".
The only reason the Congress won't do this, is because they rarely hold a supermajority, and it would strip away the facade of legitimacy to the Supreme Court(and to the US government for that matter).
Furthermore, we all know that the Congress can overturn the president's veto. And while most people realize that the Congress can impeach the president; They can actually impeach anyone in the government, including Supreme Court Justices. So in effect, the legislature could very simply run the entire show. There isn't a "balance of power". It is a complete myth.
If you understand this concept, then you'll understand why Andrew Jackson famously said... "John Marshall has made his decision, now let him enforce it."
The Supreme Court has no police force, they have no Army. Which is why in the early years of this country, they were by far the weakest of the branches of government. And it is why John Marshall could not enforce his decision.
The Supreme Court really only became relevant after the Civil War. When it was increasingly used as a way to centralize power in the Federal government, in the great "nationalization" effort of the late 1800's and early 1900's
The point is, I don't trust the Supreme Court any more than I trust anyone else. And while you like to refer to America as a "Republic". What actually makes America a Republic, is that we have a Constitution. But if you say that the Supreme Court can redefine the Constitution at their discretion. Then we have no Constitution. The Constitution becomes only what the Supreme Court says it is. And that was simply not intended.
As H.L. Mencken said... "The only guarantee of the Bill of Rights which continues to have any force and effect is the one prohibiting quartering troops on citizens in time of peace. All the rest have been disposed of by judicial interpretation and legislative whittling. Probably the worst thing that has happened in America in my time is the decay of confidence in the courts. No one can be sure any more that in a given case they will uphold the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won't. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it."
So ... if we Americans DON'T want same sex marriage, all that is required is simply changing the law by passing a constitutional amendment.
Sen. Ted Cruz has already drafted such an amendment. Did you know that?
Sorry to break it to ya but a Constitutional Amendment preventing Same-Sex marriage as ZERO chance of ever being ratified. Mr Cruz is soooo irrelevant that after Feburary of 2016 he will be but a footnote in history. He in MY opinion is SO anti he is fighting his own sexual insecurities.... He even HATES his own heritage ... he doesn't even use his REAL name.
Oh by the way MOST Americans support same sex marriage or don't care, relatively few are vehement about it enough to fight for an Amendment and a LOT of THOSE are fighting their own insecurities.
They will WRONGFULLY legalize it...another boot heel in the 10th amendment. I wish I was as optimistic as the 2 that voted they would vote against it but I am a realist.
The Supreme Court will only be proven wrong for legalizing it, if a constitutional amendment can be ratified that limits the definition of marriage a coupling of one male and one female. That's not likely.
If you honestly believe that "The Supreme Court knows best", why not just make them dictators of America? Why bother passing laws at all? Just have them issue decrees, and then if we want to overturn their decrees, we can then just pass an amendment.
Sound ridiculous?
Pretty much.
Quote:
In fact, most of the founding fathers actually believed that the Legislative branch should effectively hold all the power.
The most should have voted for such a system... but they didn't.
Quote:
And as many realize, the Supreme Court did not originally have the power of Judicial Review. That didn't come until 1803.
Twenty-six delegates to the Convention were certain that the Court did have the power of judicial review.
Writing in Federalist #78 Alexander Hamilton wrote:
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental....
[A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former....
[T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.
Again in Federalist #80 Hamilton wrote;
“ [T]he judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.
[federal judges] "would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done too with general approbation."
Eldridge Gerry
"...the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative."
Luther Martin
Furthermore, we all know that the Congress can overturn the president's veto. And while most people realize that the Congress can impeach the president; They can actually impeach anyone in the government, including Supreme Court Justices. So in effect, the legislature could very simply run the entire show. There isn't a "balance of power". It is a complete myth.
A myth is something that does not exist, for over two hundred years it that with few temporal exceptions the respect for the balance of powers between the three branches of government is as real and the nonsense in your post.
I was leaning towards thinking they would legalize it by forcing states to accept it but now from seeing news reports on questions asked even by Kennedy I don't know...I am starting to think they are gonna kick it back to the states which begs the question what happens to the states that banned it but the will of the people in those states was overthrown by a judge?
I was leaning towards thinking they would legalize it by forcing states to accept it but now from seeing news reports on questions asked even by Kennedy I don't know...I am starting to think they are gonna kick it back to the states which begs the question what happens to the states that banned it but the will of the people in those states was overthrown by a judge?
People's views can change over time. Attitudes towards gay marriage is one of them. I live in Florida which passed a ban on gay marriage, including domestic partnerships and civil unions, in 2008 by 60%. Seven years since then poll after poll on this issue show that the figure has been reversed. Today 57% favor gay marriage. In all likelihood this probably reflects Millenials reaching adulthood also.
So then what? Pass another amendment only 7 years later permitting it? That is why these bans fueled by religious groups were stupid in the first place. Attitudes change.
Remember when I think Justice Ginsberg said that the country and timing was not right yet for their ruling on it? Well, it seems like now the timing is right for it.
Twenty-six delegates to the Convention were certain that the Court did have the power of judicial review.
Writing in Federalist #78 Alexander Hamilton wrote:
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental....
[A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former....
[T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.
Again in Federalist #80 Hamilton wrote;
“ [T]he judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.
[federal judges] "would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done too with general approbation."
Eldridge Gerry
"...the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative."
Luther Martin
First, everyone knows that Judicial Review, at least as you imagine it, was not originally in the Constitution. Even the Supreme Court itself recognizes such a fact with their celebration of Marbury v. Madison. And in that case, the defendant was Madison, as in James Madison. Often referred to as "The father of the Constitution", because his plan was the foundation of our Constitution.
And even if we disregard the fact that the Federalist papers aren't necessarily the Constitution(the federalist papers were actually only one side of a debate, there were also the "antifederalist papers"). Lets then understand that sadly, everything you posted, actually proves my case.
Lets understand that the difference is between the concept of "balance of powers" and the concept of "separation of powers".
Our Constitution did not create a balance of powers, it created a separation of powers. What that means is that the branches of government act independently of each other. With one exception, the Legislature can impeach anyone in every other branch. Thus in the absolute sense, the legislature could at any time rule over the other two branches of government. In fact the only thing which prevents the legislature from running rough-shod over the other branches of government, is the people themselves.
Thus, when Hamilton says this, "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both;"
He is simply explaining this in detail. The Supreme Court is supposed to act as a sort of representative or advocate of the people. Telling them if and where the legislature has gone wrong. But it in no way implies that either the Legislature, the Executive, or the people actually have to listen to them.
How do we know this? Well as I posted before, the famous quote by Andrew Jackson, "John Marshall has made his decision, now let him enforce it."
If it was actually true that the Supreme Court had "power" over the other two branches of government in your "balance of powers" scenario. Then Andrew Jackson would have been legally-bound by the court's decision and should have been removed from office if he disregarded it.
So how could he dismiss the court's decision? Because the executive is the "executor of the laws". Only the president, being the commander-in-chief, has an army, or an FBI, or a DEA, or an ATF, or any other military or police force to enforce any law. The president can effectively decide what laws he does and doesn't want to enforce. The only check upon the president's power, is the legislature and the people, not the Supreme Court.
Thus, if Andrew Jackson decided to ignore the Supreme Court. Only the Congress could do anything about it by impeaching him for not obeying his oath to enforce the laws. And if the Legislature didn't impeach him, then it would be up to the people to replace their legislature.
If we return to the case of Andrew Jackson. The reason he was able to ignore the Supreme Court, was because the Supreme Court neither had the support of the Legislature, or of the people.
Thus, as I said before, the idea that there is a "balance of powers" is a complete myth. Ultimately, all power rests in the people themselves, and is mostly directed through their legislature.
The only reason the Supreme Court became as powerful and important as they became, is because the Supreme Court became useful in "centralizing" power in the Federal government, especially in the years following the Civil War. It has then been useful in "standardizing" the several states, by creating a uniform set of rules which apply across the country. More specifically, it has been useful in undermining "States' rights"(which were the cause of the Civil War).
For decades between FDR's new deal till the Reagan revolution, the Supreme Court did nothing but rubber-stamp the actions of the Federal government(usually through the "living document" doctrine). Only in the last two decades has there been any semblance of a Supreme Court which will uphold states' rights. Which is also why the Supreme Court has increasingly become so divided. And it is also why people like Antonin Scalia want to effectively retry "Roe v. Wade".
So lets pretend that the Supreme Court came out declaring that same-sex marriage is a fundamental right. Well, as I said, they have no power to enforce such a decision. Only Obama could then enforce it. The question then might be, will he enforce it? Well, we know that he will. So then it goes to the legislature, will they try to impeach Obama if he enforces it? Absolutely not. And why? Because it would look petty, and could cause the current legislators who supported the impeachment, to lose in future elections.
Why? Because it is what the people want. Ultimately our government is run by the people, not the Constitution. And in this particular case, everyone with a brain knows that the Constitution, and its amendments, never granted any sort of fundamental right to same-sex marriage.
Thus the truth is, as I said before, this issue has absolutely nothing to do with the actual constitution. In reality, there is no Constitution, and there hasn't been a Constitution in decades, or longer. And the show we are watching is nothing more than political theater. Why does it work? Because the people don't know any better. And to some extent, because they are told a myth that isn't true, because that myth serves the interests of the state(IE the national government).
Those who aren't ignorant realize the Constitution ultimately has little to no authority.
In effect, the Constitution is not what the Supreme Court says it means, it is what the people say it means. To the extent that we accept the decisions of the Supreme Court, it is just as I said repeatedly. Either it is A) Because we agree with it. Or B) Because we see no alternative but to go along with it.
Last edited by Redshadowz; 05-01-2015 at 11:31 AM..
First, everyone knows that Judicial Review, at least as you imagine it, was not originally in the Constitution.
Red, my first response was to go through a long and tortuous recitation of Marshall's well reasoned decision, the fact that Framers of the Constitution believed that judicial review was so blatantly obvious that like many things didn't need to be spelled out in the Constitution... but life is short too short to spend my time arguing an issue that has been an established fact, by judicial fiat, tradition precedent or whatever for 212 years and you and I arguing over the issue isn't going to change that.
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