Should the Supreme Court have the final say over what is Constitutional?

[Kevin_Kennedy]

God, grow up. The rudeness comes from your instance on bull-shit and the refusal to engage your own brain in arguments. I could really give a shit about a cherry picked quotes and especially when they are nonsense as your Miles quote. What do you mean by restraining government and how can you have a just society when government has no right to enforce uniform justice? If you are trying to stop government from enforcing justice and liberty how is it you think you have either?

I repeat, because someone agrees with something somebody else said does not mean they are not thinking for themselves. The fact that I am able to answer your rudeness with politeness should tell you which of us has the growing up to do. Because you do not agree with someone does not mean you have to be rude.

The state governments, which were more answerable to the people than a far-away central government would be, were to ensure justice and their respective Constitutions were meant to constrain them and protect liberty. An all-powerful federal government is an enemy to justice and liberty.

 

[Steerpike]

Then what does it mean? If someone can marry in one state but not another that isn't arbitrary?

I don't think it is 'arbitrary.' That implies there is no rationale behind it; just some kind of capricious decision. Each State typically has plenty of rationale behind its laws.

State's already vary on marriage. For example, two 14 year olds who wish to marry in Alabama may do so with the consent of their parents, but in Nebraska they cannot.

The age you need to be, what consent you need under age 18, etc. all varies from state to state, but I wouldn't characterize it as arbitrary.

 

[PeterS]

You've failed to respond to my previous reply on this. You may not have seen it. But it was certainly the intent to create a system where criminal law and civil law vary from State to State. This is still true today and was more true at the Founding. The Federal Government was created to fulfill role that were difficult for the semi-autonomous, independent States to fulfill. Since that time, the system has evolved into what we have today.

If it was intent for laws to vary then how could we have a society where justice was uniform?

 

[Steerpike]

If it was intent for laws to vary then how could we have a society where justice was uniform?

Who said it was supposed to be uniform? State laws still vary to this day. The Founders never intended the law to be the same from state to state. The state kept their own criminal and civil laws and still do. That's the way it is supposed to work in our country. The Constitution define the outer boundaries of the state's legal powers, but within those boundaries they can and do vary a lot.

 

[Steerpike]

By the way, Peter, the Bill of Rights, for example, didn't even apply to the states for something like 150 years after the founding. The founders in no way meant the law to be uniform from state to state. If they had, we wouldn't have a country because no state would have signed on.

 

[Procrustes Stretched]

Not exactly chaos. But some founders did in fact argue that the court did not have the authority to make the final determination. It was a source of disagreement.

jesus, they disagreed over whether to have a bill of rights. using your arguments should we throw out the bill of rights?

arguments (opinions) on what should be in the constitution made before ratification, that were not included in the final drafts, are not the word of god. they were left out.

the document was (oh the horror) a compromise.

 

[Procrustes Stretched]

Initially, the Constitution was set up to define the powers of the federal government. That was its purpose. Since then, it has also served to define the power of state and local governments.

At no point could a State simply ignore an act of the federal government because it didn't think it was Constitutional. But the federal government had to be acting within powers specifically granted to it by the Constitution. The sphere encompassing those powers has expanded greatly since the founding.

Where is the federal government acting outside it's powers granted in the Constitution?

 

[Kevin_Kennedy]

jesus, they disagreed over whether to have a bill of rights. using your arguments should we throw out the bill of rights?

arguments (opinions) on what should be in the constitution made before ratification, that were not included in the final drafts, are not the word of god. they were left out.

the document was (oh the horror) a compromise.

And after the Constitution was ratified the Supreme Court was not the final word on Constitutionality, each branch had an equal say and the states could nullify something if it was deemed unconstitutional.

 

[Procrustes Stretched]

Actually, this sort of thing is precisely what the founders intended. When they set up the Constitution it didn't apply to the State governments in large part except where it explicitly contemplated them. The Bill of Rights constrained ONLY the federal government. States were free to make these decisions on their own in large part. You will find that in Barron v. Baltimore the U.S. Supreme Court explicitly ruled that the Bill of Rights did not apply to the States.

Once the 14th amendment is put in place, and the Incorporation Doctrine comes about, the Bill of Rights starts getting applied to the States. This doesn't happen until the 1920s, long after the founders were all dead (or, if you like, some people will trace the case law back to the late 1890s, but you don't have explicit incorporation at that point).

So an amendment to change the Constitution is what you disagree with? If the 14th changes how the Bill of Rights is applied so be it. Even Jefferson argued for changing the laws every so many years.

Why worry about the 14th? Isn't the whole idea of the amendment process set up to do this?

 

[PeterS]

I don't think it is 'arbitrary.' That implies there is no rationale behind it; just some kind of capricious decision. Each State typically has plenty of rationale behind its laws.

State's already vary on marriage. For example, two 14 year olds who wish to marry in Alabama may do so with the consent of their parents, but in Nebraska they cannot.

The age you need to be, what consent you need under age 18, etc. all varies from state to state, but I wouldn't characterize it as arbitrary.

Look, marriage is simply an example and I am only using it because it is the most current example of injustice that varies state by state. Injustice is the issue and it could be womens rights , minority rights, slavery, or anyone of the thousands of examples we have from out past.

What was the intent of our founding fathers with respect to creating a just society when writing our constitution? Was that what they wanted to do with our constitution?

 

[Procrustes Stretched]

When there is no uniform application of law how can you have anything but chaos. What could prevent it? If there was a source of disagreement what was the source...those who could use chaos to maintain power and wealth?

there was a disagreement and a democratic compromise was agreed to.

why the big deal? what is Spike getting at? laying the ground with a few premises to make a broader point that may be bogus if the premises aren't bought?

 

[PeterS]

By the way, Peter, the Bill of Rights, for example, didn't even apply to the states for something like 150 years after the founding.

If the Bill of Rights wasn't meant to be applied what was its purpose? Why bother after 150 years? What happened?

The founders in no way meant the law to be uniform from state to state. If they had, we wouldn't have a country because no state would have signed on.

You're arguing pragmatism not intent. You are also arguing that the founders did not believe in justice and liberty. I think you loose that argument...

 

[Procrustes Stretched]

Sure...the point was to specifically define the powers of the federal government. That is inherently an exercise in limiting the power of the federal government, because any power not provided to them they aren't supposed to have.

Early on you did have some State's questioning the ability of the federal government to act. I see what you mean, now, and that is true. What I was getting at was if the Federal government acted in a manner that was duly authorized by the Constitution, the States aren't supposed to be able to ignore it.

People forget that the States then were really much more autonomous entities than they are today. The 'union' really was a way to bring them together under a common federal government that did the things you needed federal governments for, while leaving much of their internal matters to them.

and some people forget we had a big part of the population living in an agrarian society back then. living without the technology we have today (internet, flight, satellites, nukes, agrabiz) that has closed distances and changed the world. look at the war powers then and now.

quaint ideas of yesterday on how to function as a union may appear attractive on paper, but in practice I have to wonder.

 

[Kevin_Kennedy]

If the Bill of Rights wasn't meant to be applied what was its purpose? Why bother after 150 years? What happened?



You're arguing pragmatism not intent. You are also arguing that the founders did not believe in justice and liberty. I think you loose that argument...

It was meant to be applied to the federal government, not the individual state governments.

You're making up nonsense. Steerpike did not say the founders did not believe in justice and liberty.

 

[Procrustes Stretched]

And after the Constitution was ratified the Supreme Court was not the final word on Constitutionality, each branch had an equal say and the states could nullify something if it was deemed unconstitutional.

and the Court's power evolved. that old way would be a horrible way to run a nation today.
\
I am not for a Balkanized republic.,

 

[Procrustes Stretched]

Then what does it mean? If someone can marry in one state but not another that isn't arbitrary?

no it's Balkanization of the republic.

Balkanization is a geopolitical term originally used to describe the process of fragmentation or division of a region or state into smaller regions or states that are often hostile or non-cooperative with each other.[1][2] The term has arisen from the conflicts in the 20th century Balkans. While what is now termed Balkanization has occurred throughout history, the term originally describes the creation of smaller, ethnically diverse states following the breakup of the Ottoman Empire before World War I [3].

 

[Kevin_Kennedy]

and the Court's power evolved. that old way would be a horrible way to run a nation today.
\
I am not for a Balkanized republic.,

Yes, what a terrible nation we would be in if the government wasn't allowed to abuse it's power.

 

[PeterS]

And after the Constitution was ratified the Supreme Court was not the final word on Constitutionality, each branch had an equal say and the states could nullify something if it was deemed unconstitutional.

Equal how? Lets take slavery as an example. Suppose that it was the Supreme court that decided the issue of slavery. Are you arguing that either the executive or legislative branches could overturn the supreme court ruling that freed the slaves? And how many states to nullify?

 

[PeterS]

no it's Balkanization of the republic.

It is also republic with no mechanism for uniform justice. If that was what the founders intended then what was the point...that was what we already had...

 

[Steerpike]

If the Bill of Rights wasn't meant to be applied what was its purpose? Why bother after 150 years? What happened?

That happened was that the 14th amendment came along, and then many years later the incorporation doctrine came. The 'intent' of the original Bill of Rights was to constrain the federal government, not the States. This isn't really a matter of argument, it's a matter of historical fact. That's the way it was.

You can take a look at some Constitutional law sources such as, for example:

This wiki article

Since it is wiki, it can have some inaccuracies, but this one is good. They also cite the Barron case where, early on, the Supreme Court explicitly held that the Bill of Rights did not apply to the states. Again, this was simply a historical reality of the time.

You can also look in literally any Constitutional Law treatise. I recommend reading the one by Erwin Chemerinksy. I picked him because not only is he extremely well-known he's essentially liberal (conservatives complain about him) so you don't have to worry that you're getting a right-wing treatment on the subject.

But like I said, you can pick any text on the subject. The fact that the Bill of Rights didn't apply to the States for much of our history is simply that - a fact. There's no more use arguing it than arguing who the first President was.