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Icarus: He agreed to a degree. Even lawyers disagree on this topic. But I'd love to get back to the real issue.
Posts: 650 | Registered: Aug 2003
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Since I'm arguing an abstract issue, there is no quantitative evidence. The level of fudamentality is something that has emerged in constitutional law. You'll just have to listen to the logic. If I were arguing say whether homosexual households created stable environments, then I would produce evidence. This is more a conflict of ideas.
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quote: Let me explain something about constitutional law. There are certain things that are considered "fundamental rights" these things include, freedom of religion and the coequal branches of the federal government. That is the highest level of guaranty. Therefore if ANYTHING trespasses on those rights it is unconstitiutional. The power of the Supreme Court to destroy laws hampers the power of the coequal branch of the Legislature. Therefore the common law argument is null and void. Common law cannot override a fundamental Constitutional right.
This is the particular part I was responding to.
You offer no evidence. You offer a short attempt at a logical chain, but skip many complicated and controversial intermediary steps. You made a statement which I directly agreed with (re: the inability of common law to override an explicit law) in an apparent attempt to rebut me, which suggests you did not fully read what I wrote, particularly as common law is the least of my arguments.
My primary argument is that for the Supreme Court to exercise the jurisdiction it is given they MUST have the power of judicial review. You did nothing to rebut this, yet somehow consider me defeated (I think).
Then you somehow asserted that the legislature has a "right" to make laws. This is silly and does not make sense in a discussion unless explicated in common terms, as without explication it is gibberish. The legislature has a power to make laws.
Judicial review in no way abrogates that power. It is a necessary consequence of the ability to exercise jurisdiction.
If a law contradicts the Constitution, that law cannot be ruled as valid by the Supreme Court. That would be against their vows, and against the Constitution, as it would be placing a lesser law above the Constitution. The SC can either not rule in such a case, or render a ruling stating the lesser law is superceded by the Constitutional law. The latter is their Constitutionally granted power (that is, under their Constitutional jurisdiction, which means the area in which they may make rulings).
It is key to remember that the Constituion is a set of laws. And just as when lesser laws contradict each other a court must decide which is more valid in order to rule, so must a decision be made as to which law is valid when a lesser law contradicts a Constitutional law. And such a decision is clear: the Constitutional law supercedes any other law.
The law passed by the legislature is not invalidated by the Supreme Court, but by the laws enumerated in the Constitution.
For a law passed by Congress to be given precedence over the Constitution would be like a law passed by a township being given precedence over a state law. It just can't happen (in most states, at least; it varies by the state constitution). The law of the township would be invalid, and the only way that can be decided by a third party is in the courts. And it must be decided by a third party, or else each law making body would just make laws saying the other's laws were illegal.
For instance, say a case goes before the SC where a man violated a (national) law that forbade him from talking (at all). This would of course violate at least a couple Constitutional laws, but lets keep the example simple.
For the Supreme Court to rule, it must know what to rule on. The Supreme Court must rule according to the law-- all of the law. So they look at the law. First, they see the law the man is accused of violating. Then they see in the Constitution, where it says Congress shall make no law . . . abridging the freedom of speech. Both of these are laws.
If the congressional law is upheld, the Constitutional law is being ignored (superceded). If the Constitutional law is upheld, the Congressional law is being superceded. For the Supreme Court to make a ruling on the matter (which they are explicitly empowered to do by the Constitution) they must choose one of the laws to be valid, and the other law to be invalid.
The only choice the Supreme Court can make in such a case is to uphold the Constitutional law, and say that the legislation violates the Constitution. Any particulars of legislation that violate the Constitution are, according to the Constitution, null and void.
The Supreme Court does not strike down laws. The Supreme Court determines when laws violate the Constitution, which strikes them down (supreme law of the land and all that).
Posts: 15770 | Registered: Dec 2001
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In response to your latest post, clearly if you expect people to agree with your ideas for their merit, you must provide logical reasoning for why they have merit. A short paragraph doesn't cut it, especially when discussing Constitutional law, and even more expecially when you are expressing an opinion directly contradictory to the unanimous opinion of the greatest legal minds in the nation (I am referring to the SC justices: all of them support the idea that judicial review is a power of the Supreme Court).
Posts: 15770 | Registered: Dec 2001
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Please correct me if I have your argument wrong.
You are saying that the Constitution created two equal bodies of government, the Legislative consisting of two houses of Congress, and the Executive, consisting of the President, his Cabinet, and all their associated agencies. The Judicial branch, while important in how the laws created by Congress and enforced by the Executive branch, has no power over those branches or over the laws created.
While Congress holds the purse strings for the Supreme Court, and the Executive chooses its members, and together they can create whatever laws they wish to control the Supreme Court, the Supreme Court and the entire Judicial branch is powerless to effect them.
Does that not bring up the problem of having judges become the puppets of people in power?
You have said the Supreme Court's biggest, if not only job is to be the final arbitor of legal cases. So if Congress passes a law that is blatantly prejudiced against any minority group, (All Jews must convert to Christianity since this is a Christian based Country) or if the state of Rhode Island passed such a law, the only thing the Supreme Court can decide on is if a member was guilty of being in the minority, if they failed to conver, not of comparing that small state's law to the Constitution of the US?
Posts: 11895 | Registered: Apr 2002
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That sounds all well and good on paper (or screen) but in practice the Supreme Court is in itself superceeding the power of Congress. Therefore we have a Constitutional conflict of epic proportions. Who decides on Constitutional conflict, but the Supreme Court. Of course the Supreme Court would then decide in favor of itself. True this argument looks and sounds good, but it also leads us back to the same place. Judicial review. You are correct that Judicial Review is a natural extrapolation of the Court's listed powers. However the Court should not take their given powers to the extreme, because then they tread upon the turf of the Legislature.
Because the American Justice System has developed as it has, it is difficult to accept any other means of existance. The fact is that the Supreme Court has overstepped it's bounds and deserves to be restrained. The powers of Judicial Review may be justified in such an extreme case as a no talking law, but it would be better if the Legislature would repeal it's own law. If the Supreme Court was elected, then the power of Judicial Review would be perfectly acceptable. However since it is appointed the power of the Supreme Court should be limited from the extreme it has been taken to.
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"The fact is that the Supreme Court has overstepped it's bounds and deserves to be restrained."
No, its your OPINION the supreme court has overstepped its bounds.
And, frankly, it MIGHT be better if the legislature would overturn its own laws... but in the meantime, you're talking about real people who's rights and freedoms protected by the federal constitution are being violated. Not some figments of imagination.
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Paul: Your right it is an opinion, however in debate when you add qualifiers like "I think" "I believe" etc, you only weaken your position.
Posts: 650 | Registered: Aug 2003
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You know Ryan, I think you would fit right in over at www.ornery.com. Is it also your opinion that you can't admit you might be wrong? They really believe in that over there.
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Perhaps on the debate team. Here, it doesn't really matter. If you have a well backed up opinion, people will notice. If you tend to spout your opinions without giving backing, people will notice.
It doesn't matter which form you use. What matters is the evidence and logical reasoning.
Posts: 15770 | Registered: Dec 2001
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quote:Let me explain something about constitutional law.
Ryan...Can you sound just a little bit less condescending, please? Just because individuals do not agree with your position does not mean that they need to have the law "explained" to them by yourself.
Exactly how many law classes have you taken, by the way? I've taken two years of them, including constitutional law, in the course of earning an Associate of Science degree in Paralegal Studies. Graduated with highest honors, as a matter of fact.
Maybe I shouldn't post this. I'm having a bad day. But, you know what? What the heck. Posts: 2454 | Registered: Jan 2003
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Yep, disagreeing with OSC is common practice here. I'd bet nigh every person here has disagreed, quite possibly vehemently, with OSC on at least one occasion. He says a lot of controversial things, many of which are founded on his religious beliefs and the teachings of his church (nothing wrong with that at all, but it means those of us who are not LDS often have a different perspective).
It's perfectly okay to disagree with OSC here. It is not okay to insult OSC here (and you weren't doing this, just thought the train of discussion made it a good time to point out some of the ground rules the Cards have laid out).
Posts: 15770 | Registered: Dec 2001
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fugu, I disagree with your characterization of the constitution as a set of laws. Or, more specifically, as only a set of laws. One of the main purposes of the constitution is to enumerates the rights granted to various parts of American society. In regard to the theories of liberalism, rights and laws are in no way equal. Instead, they are of completely different classes and are generally seen more in their opposition than in agreement.
That laws be struck down because they violate these rights is an explicit and important part of the theory of liberalism as developed during the Enlightenment, which was the main basis for the American Constitution. As such, judicial review was not just established in the Constitution and then expanded by Marshall, but rather part of the very theoretical framework of our nation.
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While I haven't known more than a few law professors (maybe a dozen), none of them have agreed with your perspective. Admittedly a small sample size, but it supports the experiences of others.
Posts: 15770 | Registered: Dec 2001
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I just feel the need to point some things out here.
Ryan Hart:
The executive branch of the government has much more widespread powers than the ability to wage wars. Since they control execution of federal affairs, an administration's bias becomes very apparent very quickly, and there's not a damn thing the populous can do about the execution of these biases. The bush administration have exploited their administration of the government to rather wide extent, which can be seen in their dealings with the EPA, foreign aid, the NIH, other regulatory agencies and the UN. Theres far more to the executive branch than the ability to levy war, and it'd do well for some people to remember that.
On another note, it is not a fundamental constitutional right to pass legislation which infringes on other's fundamental constitutional rights. The arbiter of conflicts in this regard is the Supreme Court. That's what it exists for. In so far as that is true, i don't see how the supreme court's behavior is contrary to the constitution.
[ August 14, 2003, 11:46 PM: Message edited by: Pod ]
Posts: 4482 | Registered: May 2000
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I think the Constitution is "only" a set of laws in the sense that every bit of it is law. Now, it holds several properties most laws do not have. Among other things, it is, within the US, the supreme law of the land.
Secondly (on a more theoretical level), it is an attempt at a framework of basic rights and powers for other, lesser laws to hang from.
However, its great effect at that only works insofar as it is a collection of laws. Were parts of it not law, they would be ineffectual as a framework.
So I see it as a very, very special collection of laws.
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How can people (apparently including OSC) accuse any court headed by chief justice RENQUIST of possessing a liberal bias?
Anyway, if you really feel that the Supreme Court needs some checking by the exectuive and legislative branches, go write your friggin' congressmen (and women!) and stop yer whining.
Posts: 4482 | Registered: May 2000
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Also, re your statement about the difference between rights and laws, for a right to be enforced requires that, in some sense, a law exist for it. This may be an explicit part of the Constitution, or a right ruled by the Supreme Court to exist vis the "other rights" clause (which is one of the haziest parts of the Constitution, and where the Supreme Court likes to tread least).
All of these rights are mentioned in the Constitution, and by it's own definition are enforced by laws.
It is important to note that every right in the Constitution is not created by the document, but acknowledged, and protection granted to that right. That is, the right exists regardless of whether or not the Constitution exists. The Constitution contains laws which protect the (already and always) existing rights.
Thus I do not see the Constitution as having a mixture of laws and rights, but as having laws, some of which explicitly acknowledge and protect rights.
Posts: 15770 | Registered: Dec 2001
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Well on that note Fugu, the OSC tirade that Hart links to doesn't even support what Hart claims. OSC's point is that the Supreme Court should only officiate over things which deal with the constitution. If its not about constitutional law (as many legal issues in the US are), the Supreme Court shouldn't have any power.
While i don't necessarily agree, that seems to be OSC's point.
I don't think however that the Supreme Court has started circumventing or surpassing the federal legislative body or executive branch, as Mr. Hart seems to think (primarily because the Supreme Court only has the power to overturn or uphold a peice of legislation brought before it).
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Correct me if I'm wrong, but I always thought the main point of the checks and balances system was that it forced all of the branches to be continually treading on each others territory?
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quote:One branch of the Federal government is becoming too powerful. The framers of the Constitution created three co-equal branches of government.
There are certain things that are considered "fundamental rights" these things include, freedom of religion and the coequal branches of the federal government. That is the highest level of guaranty. Therefore if ANYTHING trespasses on those rights it is unconstitiutional. The power of the Supreme Court to destroy laws hampers the power of the coequal branch of the Legislature. Therefore the common law argument is null and void.
No. The Supreme Court is still the highest court in the Land. It will have power on how all the courts below it judge cases. The power of the supreme court lies in it's INFLUENCE, not in any listed power.
Ryan Hart. First, the power of the SC derives from specific powers listed in the const. (see below.) The influence comes fropm the power. If you believe the constitution created 3 coequal branches of government, then your argument falls apart on it's face. Without the power of judicial review, how is the SC equal to the other 2 branches?
quote:the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Section3, Article II.If the SC has ultimate appellete jurisdiction, then judicial review is a logical and inevitable extrapolation of SC power.I suppose they could just keep ruling on the same unconstitutional laws over and over forever or until Congress or the lower body that passed the law changed it, but that seems pretty pointless. Note that judicial review first occurred in 1803, barely 10 years after the const. was ratified. You even agree in a later post:
quote:You are correct that Judicial Review is a natural extrapolation of the Court's listed powers.
RH. You go on to say that the SC should not overstep it's bounds, which most would agree with. But where are the bounds? That's where the arguements come to bear.
quote:A system of checks and balances was set up so that one man, (The President) or one politcal party (The Senate) could control a nation.
RH. This is so wrong I don't know where to start. Checks and balances were set up in our system of governance to avoid a monarchy or autocratic government, not so one man or party could control a nation. Not that men or parties haven't tried. Many of the framers of the const. were in favor of a more powerful presidency, but were out voted in debate. I agree with others who have posted in this thread that it is the executive branch that has gotten out of hand, not the SC. Just in waging war, the US has been in 6 major wars (by my unresearched count) and many smaller engagements since WWII, with nary a declaration of war out of congress, a power specifically given to congress in the const.
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Morbo: I was reffering to a Monarchy when I referenced one man taking over. I believe the Court manipulates it's power when it takes it to the extreme of Judicial review. The court should NOT state that laws are unconstitutional. It should merely judge a case. The courts can then interpret in the manner that they would interpret a appealatte court opinion.
Pod: I was just addressing one area where the Federal government often oversteps its boundries. I am far from saying however that the government is free of corruption.
Speaking of George W. Bush however, believes that "the court should stop legislating." I quote a speech he gave when he was in North Carolina last year. I was there, and it is in proper context.
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RH:"The court should NOT state that laws are unconstitutional. It should merely judge a case."
So what do you suggest the Court should do when the case calls for an application or interpretation of an unconstutional law? I don't understand how the Court can do anything BUT declare the law unenforceable by reason of unconstitutionality. Do you want them to ingore the fact that the law violates the Constitution and apply it anyway, hoping that somebody in Congress will notice?
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Perhaps the Executive branch should also leave legislating alone. Perhaps they should leave it to the Legislative branch.
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U: You have struck what is the true problem with the issue. The answer is, I don't know. Perhaps it would be best if the Court could somehow communicate the unconstitutionality of the law to the Legislature at the time of passing. It does put us between a rock and a hard place.
Posts: 650 | Registered: Aug 2003
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When the court rules for you, that is "Judicial Review, a neccesary part of the constitutional balance of power."
When the court rules against you, that is "Legislating from the bench, an evil missuse of power."
Here is a question for you.
Without Judicial Review, the majority in congress can make any law they wish as long as the President will sign it.
At present, both the majority and the President are Republican.
What stops the majority from creating a law as follows:
"In the interest of presenting a unified front in our War on Terrorism, and the Economic Downturn we have been fighting since 9/11, any person who is now, or has ever been a member of the Democratic Party is forbidden from holding any political office until such time as the both the War on Terrorism has been succesfully completed and the Economic situation improves."
Posts: 11895 | Registered: Apr 2002
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Granted. In that case judicial review would be waranted. Perhaps what is needed then is a limitation to the level at which that power must be carried out.
Posts: 650 | Registered: Aug 2003
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RH:"Perhaps it would be best if the Court could somehow communicate the unconstitutionality of the law to the Legislature at the time of passing."
Actually, this was tried early on in our history. Some of the first national leaders wanted the Court to do this, but it was established right from the get-go that the Supreme Court has no Constitutional authority to give advisory opinions. There is no "case or controversy."
Besides which, I don't understand what advantage you think this would give us. About the only thing I can think of is a saving in time and resources, by knowing beforehand that if a certain law is passed it will just be struck down after a lengthy, expensive process of litigation.
The problem is that the Court cannot really assess the constitutionality of a law without a concrete fact situation by which to evaluate it.
1) You free them from any political influences by giving them positions for life, not elected. This allows the court to make correct decisions on difficult cases.
2) You limit them to being able to comment on laws where questions arise. They don't comment on all law that is passed, just on the law that is brought before them. This is why we have, "In God We Trust" on our money. Its probably unconstitutional, but nobodies bothered to take it to court.
3)We have Nine Supreme Court Justices, not just one or three. This makes any wild decisions on their part difficult.
4)Funding for the Supreme Court is done through Congress. Actual execution of thier judgements is done through the Executive branch. If they said something extremely displeasing to the President, he does not have to enforce it. On the other hand, his lack of enforcing it will be remembered by the voters, good or bad.
If the Supreme Court said that "To Serparate Church and State, no prayer would be allowed in the country" it would be up to the President to decide if he should raid churches and arrest people. He wouldn't. People would remember him at election time and vote for him.
Posts: 11895 | Registered: Apr 2002
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Just so you know, I am doing a refresher in contitutional law with my book. It is Modern Constitutional Law by Ronald D. Rotunda. I will have more tomorrow.
Posts: 650 | Registered: Aug 2003
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quote:Supreme Court should never EVER flaunt the will of the majority.
I think that's when I stopped reading. I thought we have a rule of law in this country. Didn't our president get into power by the supreme court acting contrary to the will of the majority? For the most part, I believe in the rule of law, which I believe to be an excruciatingly slow manifestation of the will of the majority if the masses had the sense to examine the issues and the people involved, and I'm personally happy that the people who interpret the rule of law are not elected by or accountable to an incredibly underinformed majority.
I appreciate the rule of law. You will never see me saying that Bush stole the election, though my words about the American voters may not be so kind.
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