Let's Start The National Debate

[Zhukov]

How hard is this to understand?

If the Congress passes unconstitutional laws, a Supreme Court that overturns those laws is not an activist court.

If the Congress passes constitutional laws, a Supreme Court that overturns those laws is an activist court.

Therefore a simple number: "X Court overturned Y number of laws", tells us absolutely nothing.

 

[SpidermanTuba]

Yeah. Overturning congressional intent is not the litmus test of activism you think it is Spidey.

Then what is the litmus test of activism, and how do we objectively quantify how activist a judge is?

 

[SpidermanTuba]

How hard is this to understand?

If the Congress passes unconstitutional laws, a Supreme Court that overturns those laws is not an activist court.

If the Congress passes constitutional laws, a Supreme Court that overturns those laws is an activist court.

Therefore simple number: "X Court overturned Y number of laws", tells us absolutely nothing.

So what number would tell us something?

And how do we decide if a law is constitutional or not?

Is it just me, or isn't it a fact that its the Supreme Court itself that has the legal authority to decide whether or not a law is constitutional, and not average joes like you or I?


Your definition of "judicial activist" simple means a judge whose opinions on the Constitution you disagree with. That's it. Everyone has differing opinions on the meaning of the Constitution - the only one's that matter are the opinions of the people with the legal authority to make such judgements.

 

[rtwngAvngr]

Then what is the litmus test of activism, and how do we objectively quantify how activist a judge is?

Whether they correctly interpret the constitution. If a judge asserts things are in the constitution that no honest person could find, he's activist; it's a binary thing, you wouldn't understand.

 

[Zhukov]

So what number would tell us something?

Why are you even interested in numbers? I don't favor a Republican over a Democrat. This isn't about politics. It's about what the Constitution says. For any point the Constitution addresses it is very clear what is meant (save the aforementioned elastic clause), any point the Constitution does not address cannot by definition be the purview of the Court. Making any decision other than "the Constitution says nothing on this point" of anything the Constitution says nothing about is part of the definition of an activist.

Is it just me, or isn't it a fact that its the Supreme Court itself that has the legal authority to decide whether or not a law is constitutional, and not average joes like you or I?

It is. The problem we are discussing here is when they do not do their jobs as those jobs are described in the Constitution.

Your definition of "judicial activist" simple means a judge whose opinions on the Constitution you disagree with.

My definition of a judicial activist is a judge who exceeds his authority.

Everyone has differing opinions on the meaning of the Constitution - the only one's that matter are the opinions of the people with the legal authority to make such judgements.

Well, who gives those people that legal authority? We do, the people. That's what this country is all about. That's why I don't really blame the Ginsburgs of the world. Because in the end, it's our fault.

Thus this thread. An attempt to correct that fault. To help people understand that this: "Everyone has differing opinions on the meaning of the Constitution", is not a good thing. The Constitution is for the most part quite clear. Where it is unclear there are the Federalist Papers to consult. That's it! No foreign law. No exercises in legal gymnastic reasoning.

The people of this country ratified a legal document more than two hundred years ago and save for modifications by ammendment that legally binding document means exactly what it says as understood by the people who wrote it.

To me that seems like the only intelligent, logical, and rational way to view the situation. The correct way.

After all, can you prove to me that the authors of the Constitution believed differently? Can you prove to me that the ratifiers of the Constitution understood it differently?

Otherwise, by default, it is a legal document like any other and should be adhered to accordingly.

 

[Mr. P]

I didn't read anything into what you wrote. I was merely commenting on your assertion that there are judicial activists on the bench and that there was nothing we could do about it, hence: screwed. My point is that it's our own fault.

No, you did read into it..I said "If the SCOTUS doesn't see it that way we're screwed." I didn't say it did. I did say others think so in so many words.

I do agree that if the SCOTUS is ever dominated by "activist" it indeed is our fault. I prefer balance.

 

[Annie]

Why are you even interested in numbers? I don't favor a Republican over a Democrat. This isn't about politics. It's about what the Constitution says. For any point the Constitution addresses it is very clear what is meant (save the aforementioned elastic clause), any point the Constitution does not address cannot by definition be the purview of the Court. Making any decision other than "the Constitution says nothing on this point" of anything the Constitution says nothing about is part of the definition of an activist.

I agree with this. The 'necessary and proper' clause, the elastic clause, has been stretched beyond recognition. The X Amendment has been thrown out, and Z is right, that is the citizens' own fault. If they demanded that their legislators-both state and federal kept their powers to legislate out of the hands of the judiciary, we'd all be much better off.

The courts are to 'interpret' and 'determine the constitutionality' of the laws, not make them. SOTUS did not have the power to legislate, yet they certainly did in Roe v Wade. Now if that is ever overturned, that does not mean that abortion will be made illegal-just that the regulation/legality will return to the states, where it should have remained in the first place. Some states may ban, others might expand the parameters, but in any case, that is up to the legislatures. When someone breaks the laws, then it will end up in the judicial branch, which can then rule on the lawbreaker or render a finding that the law is flawed.

It is. The problem we are discussing here is when they do not do their jobs as those jobs are described in the Constitution.

My definition of a judicial activist is a judge who exceeds his authority.

Well, who gives those people that legal authority? We do, the people.

Actually we get the ability to ignore or call into question the officials from the Constitution. The parameters of each branch and level of government are spelled out in a basic outline. Basic, meaning not specific for every type of thing to come along. Very wisely there is the elastic clause. Even more wisely, the X Amendment was added-very quickly.

The very act of arguing and trying to understand the Constitution confirms our agreement to the system of government that we have entered into. If and when the people think the Constitution is no longer viable, then we will find another form of governing ourselves or return to a 'State of Nature.' I for one am for helping to keep the Constitution alive and well and working on improving a basically sound system. [/quote]

That's what this country is all about. That's why I don't really blame the Ginsburgs of the world. Because in the end, it's our fault.

Thus this thread. An attempt to correct that fault. To help people understand that this: "Everyone has differing opinions on the meaning of the Constitution", is not a good thing. The Constitution is for the most part quite clear. Where it is unclear there are the Federalist Papers to consult. That's it! No foreign law. No exercises in legal gymnastic reasoning.

Now we are having a meeting of our positions, perhaps. I mentioned the same thing I believe in my initial response.

The people of this country ratified a legal document more than two hundred years ago and save for modifications by ammendment that legally binding document means exactly what it says as understood by the people who wrote it.

To me that seems like the only intelligent, logical, and rational way to view the situation. The correct way.

After all, can you prove to me that the authors of the Constitution believed differently? Can you prove to me that the ratifiers of the Constitution understood it differently?

Otherwise, by default, it is a legal document like any other and should be adhered to accordingly.

I do think that the above goes without saying. It seems to me that it's never been so much about what the Constitution was saying as what the judges are doing and the legislatures aren't. Truth to tell, it's much like the President not going for a Declaration of War, the Congress has abdicated powers.

 

[rtwngAvngr]

Nor does the Constitution say that you are allowed to write what you want online. It only says that "speach" is protected. This isn't speach, this is writing. So I guess by your strict literalist interpretation, freedom to write what you want should not be protected, right?


Actually, it doesn't even literally say that the state government can't pass a law inhibiting speach. The 14th amendment implies it, but it isn't explicitly stated, so you believe state and local governments should be able to inhibit your free speach?

It also only says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, " - so this means its ok for the FBI to inhibit free speach, right, as long as they aren't doing it in accordance with a law passed by Congress? Right?

You also believe that ordinary citizens should be able to purchase Stinger Missiles, too, right, since it says they can't infringe on our right to bear arms?





Or perhaps you'd like to take the ever stricter literalist intepretation of the authors of the alien and sedition acts, and suppose that its OK for Congress to punish you for your speach, so long as they don't do anything physical to prevent you from saying it? Afterall, if you are punished for saying something, you still said it, right? So your freedom to say it wasn't violated - you got to say it. So the Alien and Sedition Acts are A OK with you?

All these points are bad. Anyone can see that making abortion about privacy is just reframing the issue. It's really about life and death. Of course issues in the constitution should be debated and refined, but judges willing to be this intellectually dishonest in their opinions cannot be trusted to interpret the constitution.The left wants to shut down critical thinking in the legal realm, and trust their "enlightened" opinions. It's just not gonna happen.

 

[rtwngAvngr]

Actually I'm fine with a strict interpretation of the ALien Sedition act. While we have free speech, we can held liable for damage we may do with it. Like yelling fire in a crowded theatre.

 

[Zhukov]

Nor does the Constitution say that you are allowed to write what you want online. It only says that "speach" is protected. This isn't speach, this is writing. So I guess by your strict literalist interpretation, freedom to write what you want should not be protected, right?

Wrong. It also guarantees freedom of the press, under which any and all written political commentary would fall.

Actually, it doesn't even literally say that the state government can't pass a law inhibiting speach.

Sure it does.

Art VI
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Amend: I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Art IV
Sec. 2: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Sec. 4: The United States shall guarantee to every state in this union a republican form of government

It also only says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, " - so this means its ok for the FBI to inhibit free speach, right, as long as they aren't doing it in accordance with a law passed by Congress? Right?

That's what's known as 'illegal'. Certainly you've heard that word before.