Judicial Review Poll and Discussion

[jillian]

Agree or disagree with the outcome, but IMO the Framers wouldn't have seen it as outside the scope of judicial authority or of the common law tradition.

and therein lies the problem... there is no understanding of what common law means. they think we live in a code state.

To be fair, it's not like the common law tradition and history or a comparison to code law systems is widespread stuff in civics classes.

But when you're talking "originalist", going back to the common law as it existed in 1789 is one of the cornerstones of legitimate originalist interpretation. And you know a lot more law at that time than now was judicial, not statutory. All of equity was judicial law by definition. Without understanding the system or its history, how can one really be an originalist at all?

It's a conundrum.

it's only a conundrum insofar as people are uninformed and misinformed. the question then becomes short of forcing people to study constitutional law in school (which wouldn't necessarily be a bad thing.. we had to at least study and argue some of the major cases in high school) i'm not sure what you do about the pretend constitutionalists.

 

[goldcatt]

and therein lies the problem... there is no understanding of what common law means. they think we live in a code state.

To be fair, it's not like the common law tradition and history or a comparison to code law systems is widespread stuff in civics classes.

But when you're talking "originalist", going back to the common law as it existed in 1789 is one of the cornerstones of legitimate originalist interpretation. And you know a lot more law at that time than now was judicial, not statutory. All of equity was judicial law by definition. Without understanding the system or its history, how can one really be an originalist at all?

It's a conundrum.

it's only a conundrum insofar as people are uninformed and misinformed. the question then becomes short of forcing people to study constitutional law in school (which wouldn't necessarily be a bad thing.. we had to at least study and argue some of the major cases in high school) i'm not sure what you do about the pretend constitutionalists.

On one level you know I agree with you 100%.

But on another level, I also understand that you and I and some other folks around here have had the opportunity to get specialized training in this stuff most people never see. We've seen and worked with the real-world applications and how the system operates as an organic whole, not just playing with the ideas and looking at the documents one sentence at a time. And it gives us an advantage and a different perspective.

What I never want to say that people in general who haven't had that opportunity or experience can't learn it on their own, or are somehow stupid or just ignorant. That's ridiculous. Anybody who wants to can study and learn.

But it takes study and learning, reading the actual history, documents and cases and looking at the context in which they were decided. Learning the organic framework in which we operate and the different ways of looking at the real issues, not just a phrase here or a word there. And that takes time and energy. It definitely can't be done by reading partisan blogs or viral e-mails on either "side", only primary sources and if anything, explanations and interpretations from both "sides" to form a conclusion.

There are just too many folks who take a short cut or discard all sources with which they believe they will disagree and think it will give them all the answers. It doesn't work that way, there are too many variables, nuances and shades of gray.

That's my rant for the day.

And I would agree maybe the basics of con law and interpretation should be taught at the high school level. Why not? Once you have the basics, the rest really isn't that difficult.

 

[Bern80]

Imagine five Scalias and four Alitos and presto chango - run for the hills. While my law knowledge isn't deep, my reading of history tells me too clearly, too often, and too tragically sometimes, we make it up as we go along. Where's a good scotus when you need one.

Judicial Review and the Supreme Court

That's precisiely why Scalia is a constructionist. So that we don't make it up as we go along. I would imagine you're like a lot of others. You prefer to be a constructionist when it suits your biases and an 'interpreter' when it doesn't.

 

[jillian]

On one level you know I agree with you 100%.

But on another level, I also understand that you and I and some other folks around here have had the opportunity to get specialized training in this stuff most people never see. We've seen and worked with the real-world applications and how the system operates as an organic whole, not just playing with the ideas and looking at the documents one sentence at a time. And it gives us an advantage and a different perspective.

What I never want to say that people in general who haven't had that opportunity or experience can't learn it on their own, or are somehow stupid or just ignorant. That's ridiculous. Anybody who wants to can study and learn.

But it takes study and learning, reading the actual history, documents and cases and looking at the context in which they were decided. Learning the organic framework in which we operate and the different ways of looking at the real issues, not just a phrase here or a word there. And that takes time and energy. It definitely can't be done by reading partisan blogs or viral e-mails on either "side", only primary sources and if anything, explanations and interpretations from both "sides" to form a conclusion.

There are just too many folks who take a short cut or discard all sources with which they believe they will disagree and think it will give them all the answers. It doesn't work that way, there are too many variables, nuances and shades of gray.

That's my rant for the day.

And I would agree maybe the basics of con law and interpretation should be taught at the high school level. Why not? Once you have the basics, the rest really isn't that difficult.

as i see it, the problem is less their lack of knowledge and more their persistence in claiming an expertise that neither you, nor i nor the other people on the board who really have studied would ever claim. we know that these aren't simplistic issues. there are no brightline responses except in the most extreme cases (e.g., segregation...and even there, it took how many years to get that result and how many cases to figure out how to desegregate?). yet some yutz, who's listened to glen beck or levin and thinks they KNOW the answers is going to think they know more than 200 years of justices?? really???

so you have more tolerance for them than i do... not because of the lack of expertise, but because of their certitude.

 

[goldcatt]

Imagine five Scalias and four Alitos and presto chango - run for the hills. While my law knowledge isn't deep, my reading of history tells me too clearly, too often, and too tragically sometimes, we make it up as we go along. Where's a good scotus when you need one.

Judicial Review and the Supreme Court

That's precisiely why Scalia is a constructionist. So that we don't make it up as we go along. I would imagine you're like a lot of others. You prefer to be a constructionist when it suits your biases and an 'interpreter' when it doesn't.

And this is the kind of thing jillian and I were referring to. What you call "constructionist" (I'm assuming you're referring to one of the so-called strict construction brands of originalism here) IS a method of interpretation.

Yup, even Scalia "interprets". And not often, but sometimes I even agree with him.

Go look up any definition of it in the legal source of your choosing, don't take my word for it.

 

[George Costanza]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

There are a lot of things not specifically mentioned in the Constitution that are still prohibited.

 

[goldcatt]

On one level you know I agree with you 100%.

But on another level, I also understand that you and I and some other folks around here have had the opportunity to get specialized training in this stuff most people never see. We've seen and worked with the real-world applications and how the system operates as an organic whole, not just playing with the ideas and looking at the documents one sentence at a time. And it gives us an advantage and a different perspective.

What I never want to say that people in general who haven't had that opportunity or experience can't learn it on their own, or are somehow stupid or just ignorant. That's ridiculous. Anybody who wants to can study and learn.

But it takes study and learning, reading the actual history, documents and cases and looking at the context in which they were decided. Learning the organic framework in which we operate and the different ways of looking at the real issues, not just a phrase here or a word there. And that takes time and energy. It definitely can't be done by reading partisan blogs or viral e-mails on either "side", only primary sources and if anything, explanations and interpretations from both "sides" to form a conclusion.

There are just too many folks who take a short cut or discard all sources with which they believe they will disagree and think it will give them all the answers. It doesn't work that way, there are too many variables, nuances and shades of gray.

That's my rant for the day.

And I would agree maybe the basics of con law and interpretation should be taught at the high school level. Why not? Once you have the basics, the rest really isn't that difficult.

as i see it, the problem is less their lack of knowledge and more their persistence in claiming an expertise that neither you, nor i nor the other people on the board who really have studied would ever claim. we know that these aren't simplistic issues. there are no brightline responses except in the most extreme cases (e.g., segregation...and even there, it took how many years to get that result and how many cases to figure out how to desegregate?). yet some yutz, who's listened to glen beck or levin and thinks they KNOW the answers is going to think they know more than 200 years of justices?? really???

so you have more tolerance for them than i do... not because of the lack of expertise, but because of their certitude.

Not all of them claim expertise because they read their favorite blog or watched their favorite talking head that morning. The ones who do.....

There's just no help for them.

The way I look at it is if a person is uninformed or is making an honest effort to understand the issues from any rational point of view and gives an honest opinion based on what they know, that's very, very different from being a willfully ignorant hack.

It's that second group I'm not very tolerant of.

 

[Bern80]

Imagine five Scalias and four Alitos and presto chango - run for the hills. While my law knowledge isn't deep, my reading of history tells me too clearly, too often, and too tragically sometimes, we make it up as we go along. Where's a good scotus when you need one.

Judicial Review and the Supreme Court

That's precisiely why Scalia is a constructionist. So that we don't make it up as we go along. I would imagine you're like a lot of others. You prefer to be a constructionist when it suits your biases and an 'interpreter' when it doesn't.

And this is the kind of thing jillian and I were referring to. What you call "constructionist" (I'm assuming you're referring to one of the so-called strict construction brands of originalism here) IS a method of interpretation.

Yup, even Scalia "interprets". And not often, but sometimes I even agree with him.

Go look up any definition of it in the legal source of your choosing, don't take my word for it.

I guess it's hard for me to see constructionism as an interpretation. Jillian talked earlier about the framers not mentioning a constructionist interpretation of the document. I think that may be because they didn't feel the need to state the obvious. If theY didn't mean for us to abide by the constitution the way it was written and constructed, what was the point in writing it in the first place? If they were afraid of different intepretations they should have written a second, legaly binding document that went into even greater specificity as to what was meant by everything they wrote. They didn't do that. They wrote the document such that everyone would be able to understand it. They meant for people to understand what their rights were and what powers their government had. The only thing you may be able to fault them on is that they may have assumed everyone would abide by definitions of words and the rules of written english. How silly of them.

 

[goldcatt]

That's precisiely why Scalia is a constructionist. So that we don't make it up as we go along. I would imagine you're like a lot of others. You prefer to be a constructionist when it suits your biases and an 'interpreter' when it doesn't.

And this is the kind of thing jillian and I were referring to. What you call "constructionist" (I'm assuming you're referring to one of the so-called strict construction brands of originalism here) IS a method of interpretation.

Yup, even Scalia "interprets". And not often, but sometimes I even agree with him.

Go look up any definition of it in the legal source of your choosing, don't take my word for it.

I guess it's hard for me to see constructionism as an interpretation. Jillian talked earlier about the framers not mentioning a constructionist interpretation of the document. I think that may be because they didn't feel the need to state the obvious. If the didn't mean for us to abide by the constitution the way it was written and constructed, what was the point in writing it in the first place. If they were afraid of different intepretations they should have written a second, legaly binding document, that went into even greater specificity as to what was meant by everything they wrote. They didn't do that. They wrote the document such that everyone would be able to understand it. They meant for people to understand what their rights were and what powers their government had. The only thing you may be able to fault them on is that they may have assumed everyone would abide by definitions of words and the rules of written english. How silly of them.

Oh, really? Plain and specific English with no question as to its meaning in any given context or room for different applications?

Then tell me, using only the Bill of Rights for examples and not expanding to the rest of the document, what specific behavior is "speech"?

What exactly constitutes "the press"?

Where and how are the people to assemble and petition the government?

Of the powers and privileges not held by the Federal government, which are reserved to the States as powers and which are considered unenumerated rights reserved solely to the People under the 9th?

What does the term "unreasonable" mean in the context of the 4th, and whose idea of what's "reasonable" should apply?

What does "well-regulated" mean in the context of the 2nd?

There's plenty more, but hopefully you get the idea.

 

[Baruch Menachem]

Interpetation covers a wide area. English is a supple language, and we argue now abot the meaning of establishement of religion, where in the days of Madison and Marshall they thought they were being pretty clear.

My interpetation of the first amendment leads me to the conclusion that PBS is specificly prohibited by it. Setting up a free service in opposition to the paid services is very much a restriction on what the other radio and televison networks. I am very lonely in this point of view however. ~_^

 

[goldcatt]

Interpetation covers a wide area. English is a supple language, and we argue now abot the meaning of establishement of religion, where in the days of Madison and Marshall they thought they were being pretty clear.

My interpetation of the first amendment leads me to the conclusion that PBS is specificly prohibited by it. Setting up a free service in opposition to the paid services is very much a restriction on what the other radio and televison networks. I am very lonely in this point of view however. ~_^

I can imagine you're lonely. I can honestly say that's the first time I've seen that particular position concerning PBS.

If you look closely at the document, there are a lot of very subjective terms and standards in it. I know there's a lot of pooh-poohing about the idea of the constitution as a "living breathing" document, but there is a certain validity to it once you get past all the straw men. The language that was used has a certain amount of play to it for a reason, to allow it to be applied to different circumstances without needing 26,782 separate Amendments or, alternatively, ignoring the document completely.

So it's up to US to decide what precisely is "speech", which in modern views can be anything from the strict and narrow idea of the spoken word only to the very broad view that includes things like money and economic choices, and everything in between. Or to decide what is "unreasonable" when conducting a search or seizure. And so on down the line.

So yes, I think they knew exactly what they were doing - but IMO they weren't really trying to tie future generations' hand with their own subjective standards. They were familiar with the evolution of the common law, they knew it wouldn't work that way.

 

[Quantum Windbag]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

 

[Quantum Windbag]

On one level you know I agree with you 100%.

But on another level, I also understand that you and I and some other folks around here have had the opportunity to get specialized training in this stuff most people never see. We've seen and worked with the real-world applications and how the system operates as an organic whole, not just playing with the ideas and looking at the documents one sentence at a time. And it gives us an advantage and a different perspective.

What I never want to say that people in general who haven't had that opportunity or experience can't learn it on their own, or are somehow stupid or just ignorant. That's ridiculous. Anybody who wants to can study and learn.

But it takes study and learning, reading the actual history, documents and cases and looking at the context in which they were decided. Learning the organic framework in which we operate and the different ways of looking at the real issues, not just a phrase here or a word there. And that takes time and energy. It definitely can't be done by reading partisan blogs or viral e-mails on either "side", only primary sources and if anything, explanations and interpretations from both "sides" to form a conclusion.

There are just too many folks who take a short cut or discard all sources with which they believe they will disagree and think it will give them all the answers. It doesn't work that way, there are too many variables, nuances and shades of gray.

That's my rant for the day.

And I would agree maybe the basics of con law and interpretation should be taught at the high school level. Why not? Once you have the basics, the rest really isn't that difficult.

as i see it, the problem is less their lack of knowledge and more their persistence in claiming an expertise that neither you, nor i nor the other people on the board who really have studied would ever claim. we know that these aren't simplistic issues. there are no brightline responses except in the most extreme cases (e.g., segregation...and even there, it took how many years to get that result and how many cases to figure out how to desegregate?). yet some yutz, who's listened to glen beck or levin and thinks they KNOW the answers is going to think they know more than 200 years of justices?? really???

so you have more tolerance for them than i do... not because of the lack of expertise, but because of their certitude.

Not all of them claim expertise because they read their favorite blog or watched their favorite talking head that morning. The ones who do.....

There's just no help for them.

The way I look at it is if a person is uninformed or is making an honest effort to understand the issues from any rational point of view and gives an honest opinion based on what they know, that's very, very different from being a willfully ignorant hack.

It's that second group I'm not very tolerant of.

I try to be part of the first group, but I know I belong in the second more often that I should.

 

[Intense]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

For me Constitutional does not grant unlimited Authority with no oversight or redress. The tool is being abused. Ask yourself this if nothing else.... Why are so many Decisions split so badly down the middle? Why are so few Unanimous? I would argue it is in part because Justices get caught up on different tangents, and fail to come to agreement. There is only so much time to address each case, and that in itself becomes an issue. Who is there to challenge the limits on the Jurisdiction of the Court? You all seem comfortable when your argument or concern is advanced, yet at what cost to Individual Liberty or Justice? One day you will wake up on the wrong side of the coin toss and it will hit you like a ton of bricks. Establishing Justice has little to do with how many serve one side of the issue or the other. Establishing Justice is about Rectifying what wrongs we find, the true remedy exact. There is nothing arbitrary about it.

 

[Quantum Windbag]

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

For me Constitutional does not grant unlimited Authority with no oversight or redress. The tool is being abused. Ask yourself this if nothing else.... Why are so many Decisions split so badly down the middle? Why are so few Unanimous? I would argue it is in part because Justices get caught up on different tangents, and fail to come to agreement. There is only so much time to address each case, and that in itself becomes an issue. Who is there to challenge the limits on the Jurisdiction of the Court? You all seem comfortable when your argument or concern is advanced, yet at what cost to Individual Liberty or Justice? One day you will wake up on the wrong side of the coin toss and it will hit you like a ton of bricks. Establishing Justice has little to do with how many serve one side of the issue or the other. Establishing Justice is about Rectifying what wrongs we find, the true remedy exact. There is nothing arbitrary about it.

The media only reports on the on the close ones. The fact is that only about 30% of the decisions are 5-4 splits.

 

[whitehall]

Why the sudden left wing assault on the Constitution? Feeling froggy marxists or is it just marching orders from George Soros? Article 3 of the US Constitution created the Supreme Court. The Madison (1801-1835) Supreme Court established itself as the sole arbiter of the Constitution in Marbury vs Madison. The judicial review concept is well established. Want to change it now that you lost your chance for revolution in the last election lefties?

 

[goldcatt]

Why the sudden left wing assault on the Constitution? Feeling froggy marxists or is it just marching orders from George Soros? Article 3 of the US Constitution created the Supreme Court. The Madison (1801-1835) Supreme Court established itself as the sole arbiter of the Constitution in Marbury vs Madison. The judicial review concept is well established. Want to change it now that you lost your chance for revolution in the last election lefties?

It's not generally the "lefties" who dislike the idea of judicial review.

Not to be picky, but I think if you look back you'll find Marshall was the Chief Justice at the time Marbury was decided and the author of the opinion. Marshall was also a distinguished gentleman and part of the Constitutional Convention, but in 1803 when the case was decided Madison was serving as Jefferson's Secretary of State. He never sat on the Court. His name is on the case because he was a party to it in his official capacity, not because he decided it.

Marbury v. Madison, 5 U.S. 137 (1803)

 

[goldcatt]

as i see it, the problem is less their lack of knowledge and more their persistence in claiming an expertise that neither you, nor i nor the other people on the board who really have studied would ever claim. we know that these aren't simplistic issues. there are no brightline responses except in the most extreme cases (e.g., segregation...and even there, it took how many years to get that result and how many cases to figure out how to desegregate?). yet some yutz, who's listened to glen beck or levin and thinks they KNOW the answers is going to think they know more than 200 years of justices?? really???

so you have more tolerance for them than i do... not because of the lack of expertise, but because of their certitude.

Not all of them claim expertise because they read their favorite blog or watched their favorite talking head that morning. The ones who do.....

There's just no help for them.

The way I look at it is if a person is uninformed or is making an honest effort to understand the issues from any rational point of view and gives an honest opinion based on what they know, that's very, very different from being a willfully ignorant hack.

It's that second group I'm not very tolerant of.

I try to be part of the first group, but I know I belong in the second more often that I should.

Hardly that.

You and most of the folks who've posted on this thread do just fine in my book. You know the ones I was referring to there. No names need be mentioned.

 

[jillian]

Not all of them claim expertise because they read their favorite blog or watched their favorite talking head that morning. The ones who do.....

There's just no help for them.

The way I look at it is if a person is uninformed or is making an honest effort to understand the issues from any rational point of view and gives an honest opinion based on what they know, that's very, very different from being a willfully ignorant hack.

It's that second group I'm not very tolerant of.

I try to be part of the first group, but I know I belong in the second more often that I should.

Hardly that.

You and most of the folks who've posted on this thread do just fine in my book. You know the ones I was referring to there. No names need be mentioned.

i agree with goldcatt. most of the dialogue on this thread was really interesting. and yes, you know who the pretend constitutionalists are.

 

[jillian]

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

For me Constitutional does not grant unlimited Authority with no oversight or redress. The tool is being abused. Ask yourself this if nothing else.... Why are so many Decisions split so badly down the middle? Why are so few Unanimous? I would argue it is in part because Justices get caught up on different tangents, and fail to come to agreement. There is only so much time to address each case, and that in itself becomes an issue. Who is there to challenge the limits on the Jurisdiction of the Court? You all seem comfortable when your argument or concern is advanced, yet at what cost to Individual Liberty or Justice? One day you will wake up on the wrong side of the coin toss and it will hit you like a ton of bricks. Establishing Justice has little to do with how many serve one side of the issue or the other. Establishing Justice is about Rectifying what wrongs we find, the true remedy exact. There is nothing arbitrary about it.

why are decisions split down the middle? in part, because scholars disagree on the answers; in part because appointees are political. bush v gore would never have been decided the way it was had there been another justice souter instead of justice scalia. the one who really is the scholar, btw, is souter... not just because i agree with him. souter's determination of bush v gore would have been to remand to the florida supreme court for determination of the specific issue of equal protection. that is what all of the precedent on the issue required.

the failure to arrive at a consensus has nothing to do with time.

the right answer is not always about justice, though one would hope it is. for example, the right answer in kelo was that zoning is a standard fair use of property. but the result in that case was a horribly unjust one.

why else are decisions split? judges are human and imperfect. there have always been rumors that sandra day o'connor got very upset when she heard that gore won the 2000 election because she would 'have to wait another 4 years to retire' since she wanted to retire under a republican president. she later said she regretted her vote in that case and the decision has been compared by scholars to the decision in dred scott.

why is the decision in plessy v ferguson different from the decision in brown v board of ed?? because the world changed and, along with it, our idea of equality and the realization that separate cannot be equal. it's really that simple

... and that complex.