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Author Topic: Prominent Democrats: The Constitution Is ‘Weird’ (Oh, and more Torah 101)
TomDavidson
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quote:
Is that your argument? I thought it was that the constitution was a living document, like the Torah is.
Yes, that is also my argument. And like many strict Constitutionalists, many Jews don't think of the Torah as a living document. [Smile]
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Lisa
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Man, Tom, if ignorance is bliss, you must be ecstatic.
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Armoth
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quote:
Originally posted by Lisa:
Man, Tom, if ignorance is bliss, you must be ecstatic.

Exactly. I was gonna reply to Tom, but I threw up my hands in exasperation. Telling 3 orthodox Jews who are fairly-well versed in the interpretation of the Torah and Oral Law that it's just like the interpretation of the Constitution...I mean, seriously?
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Lyrhawn
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This occurred to me while reading through some of this thread, and it's not really on topic for your current argument, but...You know the funny thing about unconstitutionality: Technically if we followed the exact letter of what powers are given by the Constitution, nothing passed by Congress would ever be unconstitutional. Not unless they said it was.
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Lisa
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That doesn't make any sense. And personally, I'm more than happy to move on from that "current argument", since it's content free on one side.

People don't suck as much as you think they do, Lyrhawn. Legislators mostly stuck to their Constitutional limitations for quite a while.

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Lyrhawn
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There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. And you'd better believe that the other two branches of government screamed bloody murder when Marshall claimed it for himself. When Congress first met and started passing bills, they intended to be their own police men, and were pretty pissed with Marshall stuck his nose in their business.

And I think you'll find that claims of unconstitutionality go back about as far as the constitution does.

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Armoth
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quote:
Originally posted by Lyrhawn:
There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. And you'd better believe that the other two branches of government screamed bloody murder when Marshall claimed it for himself. When Congress first met and started passing bills, they intended to be their own police men, and were pretty pissed with Marshall stuck his nose in their business.

And I think you'll find that claims of unconstitutionality go back about as far as the constitution does.

True. I don't think the power to declare something unconstitutional was used until Dred Scott.
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Lyrhawn
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Marbury v. Madison. And then yes, it wasn't used again until Dred Scott v. Sanford.

I think you also have to consider all the cases that were decided and the law was not struck down, as merely hearing the case under the guise of judicial review seems to confirm that they have the power, they just chose not to exercise it. These types of cases really took off around the time of the civil war, and have never really slowed down since.

All of it is based upon the legal rationale that Marshall used in Marbury to justify SCOTUS having the power to strike down an act of Congress, and not anything actually written in the Constitution specifically.

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Samprimary
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quote:
Originally posted by Lyrhawn:
You know the funny thing about unconstitutionality: Technically if we followed the exact letter of what powers are given by the Constitution, nothing passed by Congress would ever be unconstitutional. Not unless they said it was.

My last polsci professor noted this as one of the more supreme oddities of our system of legal constitutional review. More so, he used it as an example of how the way law works in practice will never consistently remain as the law says; this is especially true in the event of a system becoming dysfunctional and/or necessitating common-sense mechanisms of bypass in order to keep operating. Which means that the more Congress locks up, the more power the executive will casually absorb. Doesn't matter which party's in charge.
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TomDavidson
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quote:
Telling 3 orthodox Jews who are fairly-well versed in the interpretation of the Torah and Oral Law that it's just like the interpretation of the Constitution...I mean, seriously?
Again, what do you consider to be the practical difference? You haven't actually presented a meaningful distinction between the two, bearing in mind that it does not in fact matter whether God or the Founding Fathers wrote the document in question.
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Armoth
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quote:
Originally posted by TomDavidson:
quote:
Telling 3 orthodox Jews who are fairly-well versed in the interpretation of the Torah and Oral Law that it's just like the interpretation of the Constitution...I mean, seriously?
Again, what do you consider to be the practical difference? You haven't actually presented a meaningful distinction between the two, bearing in mind that it does not in fact matter whether God or the Founding Fathers wrote the document in question.
What do you want me to say, "yuh huh"? Come spend a couple of years in religious seminary and then you'll be all - "Gee golly, I should probably not presume to know anything about religious legal system after never having studied it"
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Lisa
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quote:
Originally posted by Lyrhawn:
There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. And you'd better believe that the other two branches of government screamed bloody murder when Marshall claimed it for himself. When Congress first met and started passing bills, they intended to be their own police men, and were pretty pissed with Marshall stuck his nose in their business.

And I think you'll find that claims of unconstitutionality go back about as far as the constitution does.

Oh, I know. And I think Marshall was just plain wrong. He was simply depending on an unwillingness to get into a constitutional crisis. There isn't any reason why SCOTUS should have the right of judicial review.

But limits are limits whether they're enforced or not.

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Lisa
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quote:
Originally posted by Armoth:
quote:
Originally posted by TomDavidson:
quote:
Telling 3 orthodox Jews who are fairly-well versed in the interpretation of the Torah and Oral Law that it's just like the interpretation of the Constitution...I mean, seriously?
Again, what do you consider to be the practical difference? You haven't actually presented a meaningful distinction between the two, bearing in mind that it does not in fact matter whether God or the Founding Fathers wrote the document in question.
What do you want me to say, "yuh huh"? Come spend a couple of years in religious seminary and then you'll be all - "Gee golly, I should probably not presume to know anything about religious legal system after never having studied it"
QFT
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rivka
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Pfft. This is Tom.

No, he still wouldn't. He's stubborn like that.

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TomDavidson
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quote:
What do you want me to say, "yuh huh"?
I would like you to explain the mechanism of difference between an oral Torah justified by itself and interpreted by a committee of elites from legal precedent justified by precedent and interpreted by a committee of elites. How do these mechanisms functionally differ?
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King of Men
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Most ideas can, in fact, be explained in a forum post, even if it takes two years to [s]brainwash you into accepting them[/s] explore the full implications. How about you getting down off your high horse and telling us what the big deal is, instead of this sneering appeal to authority?
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Armoth
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It's interesting. KoM. You'd earn a lot more credibility if you always played the part of the rationalist. Surely, you'd recognize that to explain a legal system in a forum post is ridiculous.

Tom - on the point of self-justification, I quoted you the verses in Deuteronomy from which Oral Torah derives its written authority.

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Samprimary
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this is massively entertaining for all of the wrong reasons.
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Lyrhawn
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quote:
Originally posted by Lisa:
quote:
Originally posted by Lyrhawn:
There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. And you'd better believe that the other two branches of government screamed bloody murder when Marshall claimed it for himself. When Congress first met and started passing bills, they intended to be their own police men, and were pretty pissed with Marshall stuck his nose in their business.

And I think you'll find that claims of unconstitutionality go back about as far as the constitution does.

Oh, I know. And I think Marshall was just plain wrong. He was simply depending on an unwillingness to get into a constitutional crisis. There isn't any reason why SCOTUS should have the right of judicial review.

But limits are limits whether they're enforced or not.

That's adorable.

If the branches are equal, and checks and balances is a real thing, then where does SCOTUS fit into the government? If they have no power over either branch, the Executive and the Congress can walk all over them, and there's no check over Congressional power, it would depend entirely on Congress' self-control. The whole point of checks and balances is to NOT have to rely on any one branch's self-control.

Your theory on government seems to distill to "we can trust them to do the right thing." That sounds a hell of a lot more like something that I would say.

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TomDavidson
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Why is it ridiculous to explain a legal system in a forum post? Especially when all that's being asked is the functional distinction between two analogous situations?

Armoth: "listen to the Levites" is an awfully narrow scripture on which to hang the oral Torah.

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Armoth
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The Levites and the Judge. The Levites were a tribe of scholars and teachers.
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TomDavidson
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Yes, I know. Why do you mention it?
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Tstorm
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I prefer to stay in the background on the religious threads. I learn more by reading and thinking than I do by participating, I feel. Plus, judging by the outcome of many threads, not participating saves me a lot of unnecessary stress.

Would it be possible for Rivka, Lisa, or Armoth to explain, even briefly and succinctly, why interpretation of the Torah and Oral Law is different from interpretation of any legal code?

(I'm not sure I'm even asking the right question, here.)

I'm not trying to be a pest, but I'm approaching this discussion (and I use that term pretty loosely) from a different perspective. My knowledge of Judaism is limited. I'm not quite sure I understand your perspective; because of that, I'm not sure I understand Tom's perspective, either. :shrug: Maybe it could help other lurkers understand, too. This little exchange has been...confusing...

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SoaPiNuReYe
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quote:
Originally posted by Samprimary:
this is massively entertaining for all of the wrong reasons.

The funny thing is, you could tell right from the start how this would end.
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Lisa
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quote:
Originally posted by Tstorm:
Would it be possible for Rivka, Lisa, or Armoth to explain, even briefly and succinctly, why interpretation of the Torah and Oral Law is different from interpretation of any legal code?

(I'm not sure I'm even asking the right question, here.)

I think that's probably the problem. Would you mind clarifying the question, please? When you say "interpretation of the Torah and Oral Law", to what are you referring? Can you point to something, so that we can know how to respond?
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Lisa
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quote:
Originally posted by Lyrhawn:
quote:
Originally posted by Lisa:
Oh, I know. And I think Marshall was just plain wrong. He was simply depending on an unwillingness to get into a constitutional crisis. There isn't any reason why SCOTUS should have the right of judicial review.

But limits are limits whether they're enforced or not.

That's adorable.

If the branches are equal, and checks and balances is a real thing, then where does SCOTUS fit into the government?

Where does it say that all three branches are equal? Or that every branch has checks and balances on each of the others? That's a result of Marshall's judicial review coup, and not something in the Constitution.

SCOTUS is the high court. Geddit? You appeal, you appeal, you appeal, and finally there's an end to it.

The check on Congress, incidentally, according to Jefferson and everyone else who wasn't into Hamilton's federal government uber alles position, is the States. The States are entitled to nullify laws which they deem unconstitutional. This is called nullification, or interposition.

http://en.wikipedia.org/wiki/Nullification (click through to the one on the US Constitution)

http://en.wikipedia.org/wiki/Interposition

http://en.wikipedia.org/wiki/Nullification_Crisis

James Madison claimed that not only do States have this right, it is in fact their duty.

So your question makes some sense, but only if you start from the idea that the States are absolute subjects of the Federal government. Which they are not.

quote:
Originally posted by Lyrhawn:
Your theory on government seems to distill to "we can trust them to do the right thing." That sounds a hell of a lot more like something that I would say.

It does sound more like something you'd say. But I don't really buy it.
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Blayne Bradley
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The states have looooong since ceased to be anything other than Absolute subjects of the federal government, this I think was a predictable course of action even then, that overtime the States would continue to surrender more of their rights for more collective securities and prosperity on a national level.

The civil war, and then the civil rights act I think essentially push down and then buried the concept.

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Lisa
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Blayne, ideas come and go in this country. Ron Paul brought the idea of the Constitution back into the light of day, and the Tea Party (which is a direct result of the Paul campaign) is continuing to push this.
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Samprimary
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quote:
Originally posted by Lisa:
James Madison claimed that not only do States have this right, it is in fact their duty.

The claim to nullification has been defunct since Cooper v. Aaron. Anybody can claim that the states have this right (or claim that income tax is unconstitutional, or that we never landed on the moon) but it's not backed up by precedent or application, and the states are in no position to assert otherwise.
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Lyrhawn
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quote:
SCOTUS is the high court. Geddit? You appeal, you appeal, you appeal, and finally there's an end to it.
This means nothing. We're talking about powers, not process. I know how the appeals process works, but to what extent do they have the power to grant appeal requests?

quote:
The check on Congress, incidentally, according to Jefferson and everyone else who wasn't into Hamilton's federal government uber alles position, is the States. The States are entitled to nullify laws which they deem unconstitutional. This is called nullification, or interposition.
Show me where it says this in the Constitution.
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MightyCow
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This seems to be a case of "I'm right and you're wrong," with a strong unspoken undercurrent of, "because God said so" and a side order of Special Pleading.
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Lisa
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quote:
Originally posted by Lyrhawn:
quote:
The check on Congress, incidentally, according to Jefferson and everyone else who wasn't into Hamilton's federal government uber alles position, is the States. The States are entitled to nullify laws which they deem unconstitutional. This is called nullification, or interposition.
Show me where it says this in the Constitution.
That'd be the 9th and 10th Amendments.
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fugu13
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The 9th amendment says people might have rights that aren't spelled out in the Constitution. It doesn't even vaguely address the powers you've asserted.

The debate for the 10th amendment included consideration of the necessary and proper clause, and the consensus decision was a version that did not trump the necessary and proper clause (if they had added "expressly" it would have). It does, however, at least vaguely pertain to the question at hand.

But you seem to have created a situation where the federal government has absolutely no power over the states. After all, if in your interpretation the states are sole arbiters (separately, as indicated by the 10th amendment that you're using to support the idea) of what's Constitutional, they can name anything unconstitutional.

Even Jefferson didn't think that was the case.

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fugu13
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Interestingly, Jefferson seems to have liked the Federal government to be essentially unanswerable to anyone unless they pissed off at about two thirds of everyone.

quote:
"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
He's clearly interpreting (in this and other quotations) the 10th amendment to not allow what you said, instead relying on the power to call for new amendments. That is, if people don't like the Congress having done something, and can't get a new Congress to undo it (and evidence is clear they haven't been easily persuaded in that direction), they need to amend the Constitution to undo it, in Jefferson's worldview.

Since the evidence is overwhelming that most people are willing to tolerate, ah, statist interventions, I'd think libertarians would be happy to get at least minimal protection of rights by the courts. Of course, you're probably going to respond that the situation created by not having courts able to overrule Congress would lead to such dissatisfaction that people would become aggressively rights-minded.

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SoaPiNuReYe
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quote:
Originally posted by Lisa:
Blayne, ideas come and go in this country. Ron Paul brought the idea of the Constitution back into the light of day, and the Tea Party (which is a direct result of the Paul campaign) is continuing to push this.

This is arguable at best.
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Lyrhawn
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quote:
Originally posted by SoaPiNuReYe:
quote:
Originally posted by Lisa:
Blayne, ideas come and go in this country. Ron Paul brought the idea of the Constitution back into the light of day, and the Tea Party (which is a direct result of the Paul campaign) is continuing to push this.

This is arguable at best.
Well, Paul's role in bringing about the Tea Party is probably somewhat important, but in the grand scheme of things I'm betting most people in the Tea Party couldn't name what his biggest issue is. And anyone who has heard him talk for five minutes knows what it is. Him having "brought the idea of the Constitution back into the light of day" is an incredibly vague statement that I don't even understand. Okay, I know what she means by it, but it's still a silly thing to say.

You know I think the most interesting election in the country is going to be in Alaska. In many ways Alaska is an electoral outlier from almost any other state in American politics. It's a state that is extremely cheap to campaign in, where write-in candidates actually have a decent history of winning, and where there are so few people that any halfway decent get out the vote campaign can turn up numbers that can win an election. The Tea Party candidate there unhorsed Lisa Murkowski from the GOP senate nomination. Murkowski is from the closest thing that Alaska has to a political family dynasty, and she got the boot. But now she's running a write-in campaign across the state. Anywhere else I'd say they already chose their poison and she doesn't have a chance, but here's why I'm interested. Alaska gets something like two to one in federal money. That is, for every dollar they pay out in taxes, they get almost two dollars back. They are the most heavily subsidized state in the entire country, which is sort of ironic considering their oil money means they almost always have a nice surplus in their budget.

But here's the rub: The guy they nominated on the GOP side wants a dramatic slash in federal spending. Cut Social Security, cut Medicare, cut unemployment benefits. Really, eliminate them. That's a lot of money for Alaskans. Now, the chances of him getting any of that are pretty much zero, but it's what he wants. Will Alaskans vote for him knowing they'll be losing out big time on federal dollars, but perhaps knowing that this won't really happen, yet with fingers crossed that taxes might somehow get lowered despite that? Or will they vote for Murkowski to protect those programs? Either way the exit polls will be interesting.

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Destineer
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quote:

The check on Congress, incidentally, according to Jefferson and everyone else who wasn't into Hamilton's federal government uber alles position, is the States. The States are entitled to nullify laws which they deem unconstitutional. This is called nullification, or interposition.

There's still a big hole in this system that we don't have in the present system.

If the only way to enforce the Constitution is nullification by the states, how could it be possible to prevent a state from passing unconstitutional laws?

For instance, if a state were to make a law abridging the right to bear arms, how would the consitutional prohibition on such laws be enforced?

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Samprimary
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quote:
Originally posted by Destineer:
If the only way to enforce the Constitution is nullification by the states, how could it be possible to prevent a state from passing unconstitutional laws?

It wouldn't really be that possible. Basically, the state nullification argument in its present form is a desperate revisionary concept by the same people who basically believe that the united states should be a confederacy and that Lincoln et.al were horrid tyrants for keeping the union intact, etc.
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Lisa
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quote:
Originally posted by Destineer:
quote:

The check on Congress, incidentally, according to Jefferson and everyone else who wasn't into Hamilton's federal government uber alles position, is the States. The States are entitled to nullify laws which they deem unconstitutional. This is called nullification, or interposition.

There's still a big hole in this system that we don't have in the present system.

If the only way to enforce the Constitution is nullification by the states, how could it be possible to prevent a state from passing unconstitutional laws?

For instance, if a state were to make a law abridging the right to bear arms, how would the consitutional prohibition on such laws be enforced?

Prior to the 14th amendment, the idea of the US Constitution having any effect on States was ridiculous. The Constitution defines the federal government. The Bill of Rights is restrictions on the federal government.

But then the States themselves voted to ratify the 14th Amendment. So now any protections afforded people by the Constitution are binding on a state level as well.

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Blayne Bradley
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Which is by design, if the states nolonger wish to hold their soveriengty the way they used to then how is this a problem?
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Lyrhawn
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She's right about that. State governments were very protective of their rights. If anyone was going to oppress the people, then gosh darnit, it'd be the states, not the federal government.

I don't agree with anything she has to say about state power over the federal government though. Or at least, anything I've heard that far. Doesn't mean she won't say something I agree with in the future.

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fugu13
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quote:
Prior to the 14th amendment, the idea of the US Constitution having any effect on States was ridiculous.
No, it wasn't. Certain rights could be argued over, but others were unambiguously guaranteed -- and the Constitution is quite explicit that it is the supreme law of the land. The courts have been enforcing those rights as regards states since the very beginning, too. Take, as an example, the fourth amendment. That's been binding on states since the very beginning. Would you like to present some evidence otherwise?

edit: I did some research, and I'd like to retract. Early on the Constitution was interpreted this way for the fourth amendment (though I think it obvious the explicit text of the Constitution made certain parts applicable, and would be interested in seeing logic that says otherwise). However, certain other clauses were applied to the states: for instance, the commerce clause restricted what states could do, even early on.

[ October 06, 2010, 12:41 AM: Message edited by: fugu13 ]

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Destineer
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quote:
Prior to the 14th amendment, the idea of the US Constitution having any effect on States was ridiculous. The Constitution defines the federal government. The Bill of Rights is restrictions on the federal government.
So prior to the 14th amendment, the states had the right to ban guns and execute accused criminals without jury trials? That's absurd.

I can see the rationale here with the amendments that say "Congress shall make no law," but some of them are clearly worded as blanket bans. The 5th amendment makes no exception exempting states.

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Armoth
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quote:
Originally posted by Destineer:
quote:
Prior to the 14th amendment, the idea of the US Constitution having any effect on States was ridiculous. The Constitution defines the federal government. The Bill of Rights is restrictions on the federal government.
So prior to the 14th amendment, the states had the right to ban guns and execute accused criminals without jury trials? That's absurd.

I can see the rationale here with the amendments that say "Congress shall make no law," but some of them are clearly worded as blanket bans. The 5th amendment makes no exception exempting states.

Not all of the Bill of Rights has been incorporated yet.

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

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Dobbie
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quote:
Originally posted by Lisa:
quote:
Originally posted by Dobbie:
http://shalomtv.org/PGMG_Jewish101.htm

My high school math teacher used to say "There's no such thing as a good analogy." The reason being that all analogies fall apart at some point.

Sure, you can analogize the two in the sense that they are both the law. But the way the US government has treated the US Constitution in the past century is very similar to how most American Jews have treated the Torah over that same period of time. Which is to say that they've put it in a library and chosen to treat it as a quaint thing that's only of historical interest.

Also, if you look here, you'll see that Golub is a Reform rabbi, and as such, his view on similarities between the Torah and the US Constitution are iffy, at best.

A cousin of mine who I met last year on Facebook expressed surprise at the idea that the Oral Torah was given at Sinai. She said she was going to ask her (Reform) rabbi. I told her what he was going to say. Not because he's a liar or anything, but because even their rabbis have learned this kind of misinformation and think that the Oral Torah is "an interpretation of the Torah". A month or so ago, she mentioned to me that she finally got around to asking him. I asked if his answer was what I said it would be, and she said it was.

I didn't mean for that video to be dispositive. I was merely pointing out that the analogy was not merely a misunderstanding by an "ignorant" non-Jew.
Actually, given the Supreme Court's track record the analogy is insulting to the Rabbis.

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Destineer
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Oh yeah, this thread. It was an interesting discussion near the end.

The early interpretation of the Bill of Rights as not governing the states still strikes me as bizarre, and obviously inferior to our present system of courts enforcing the amendments at both the federal and state level.

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The Rabbit
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quote:
I mean - look at it this way - the fact is that a majority of people pass a law, and then it gets struck down as unconstitutional. That means that a majority of people forgot, ignored(in many cases) or dishonestly interpreted the constitution.
You left off a 4th option, that people honestly disagreed about how the constitution should be interpreted. Failure to recognize that possibility, the possibility of honest disagreement and loyal opposition is, I think, one of the biggest problems in American politics.
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Lyrhawn
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quote:
Originally posted by Destineer:
Oh yeah, this thread. It was an interesting discussion near the end.

The early interpretation of the Bill of Rights as not governing the states still strikes me as bizarre, and obviously inferior to our present system of courts enforcing the amendments at both the federal and state level.

You have to imagine a national attitude towards citizenship that put state citizenship and national citizenship not only on different levels, but where state citizenship was valued the most. Even after the 14th amendment was passed this attitude persisted in the south. These were people who didn't necessarily fear government, but they did fear a national government diluting their own power to have control over their own state. Like I said way earlier in this thread, if someone was going to oppress the people it had darn well better be the state government, not the national.
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David G
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quote:
Originally posted by Lyrhawn:
There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. There is no mechanism in the constitution for judicial review of congressional legislation. It is an implied power, not a specifically codified one. And you'd better believe that the other two branches of government screamed bloody murder when Marshall claimed it for himself. When Congress first met and started passing bills, they intended to be their own police men, and were pretty pissed with Marshall stuck his nose in their business.

And I think you'll find that claims of unconstitutionality go back about as far as the constitution does.

I believe this is wrong, especially the portion above in italics.

Article III, Section 2.1 addresses specifically the judiciary's power to review congressional legislation: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States [which are the laws passed by Congress], ..."

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Lyrhawn
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Check your Con Law history. Historically, the section you put forth has never had the force you think it does.
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