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

[Procrustes Stretched]

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

You think the SCOTUS or the Executive or the Congress are abusing their power? Funny each branch is often saying that about the other, so imnsho the thing (consitution) is working just fine.

I do think the Founding Fathers (sorry girls) were aware of the adage that power corrupts and I think they were students of human nature. For my whole life time I've heard the alarms, screams and whines about the government and yet here we are...still kicking.

This is all an alarmist bogus argument meant to keep people uneasy. I recognized it's ugly head rearing early on. The smell too. It is so distinct.

 

[Kevin_Kennedy]

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?

Your hypotheticals are nonsense. The Supreme Court believed in the constitutionality of a central bank, Andrew Jackson disagreed and he put an end to the Bank of the United States.

 

[Kevin_Kennedy]

You think the SCOTUS or the Executive or the Congress are abusing their power? Funny each branch is often saying that about the other, so imnsho the thing (consitution) is working just fine.

I do think the Founding Fathers (sorry girls) were aware of the adage that power corrupts and I think they were students of human nature. For my whole life time I've heard the alarms, screams and whines about the government and yet here we are...still kicking.

This is all an alarmist bogus argument meant to keep people uneasy. I recognized it's ugly head rearing early on. The smell too. It is so distinct.

Yes, I certainly do. The recent bailouts, for example, are an abuse of power by all three branches.

They certainly believed power corrupts, which is why they did not believe in giving too much power to any one branch of the government. Especially an unelected and unanswerable group of people.

 

[Procrustes Stretched]

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...

Justice is blind. That is why a good lawyer will keep his/her clients out of the courts whenever possible.

What did the founders intend? I'm not always sure, but I am sure they wanted us to govern ourselves and not be held to their quaint positions on everything as time marched on.

They gave us the power to CHANGE things. Looking back may make some people feel all warm inside (cons?), but that warmth is usually similar to piss and diarrhea running down ones legs...warm but a mess.

 

[Procrustes Stretched]

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.

"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."

The SCOTUS also held positions early on that were later overturned and some that were atrocious in opposition to the ideals of America.

Facts are what they are. How they are used is of interest to me.

 

[Procrustes Stretched]

Yes, I certainly do. The recent bailouts, for example, are an abuse of power by all three branches.

They certainly believed power corrupts, which is why they did not believe in giving too much power to any one branch of the government. Especially an unelected and unanswerable group of people.

How are the bailouts an abuse of power?

The SCOTUS is beyond the reach of the ballot box. Does that disturb you? Would you rather an elected federal judiciary?

 

[Kevin_Kennedy]

How are the bailouts an abuse of power?

The SCOTUS is beyond the reach of the ballot box. Does that disturb you? Would you rather an elected federal judiciary?

The government has no Constitutional authority to bail out failed businesses.

Yes, it does disturb me considering that they are the final word on constitutionality.

 

[jillian]

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.

Again, wrong. As soon as the issue came up, in Marbury v Madison, it was ascertained that the ONLY way to keep the legislature and the executive from acting unconstitutionally was the Court.

Where are you getting your information?

 

[jillian]

The government has no Constitutional authority to bail out failed businesses.

Yes, it does disturb me considering that they are the final word on constitutionality.

Please, I'm begging you... the general welfare clause allows the government to take almost any action it deems necessary.

You really do need to read some con law.

Seriously. This issue goes back to the New Deal. Stop it.

And like it or not... and yes, there are times I haven't liked it... the Court needs to be out of reach of the ballot box so people who have no idea of appropriate constitutional construction can't mess up the court or force them to make stupid decisions.

 

[Procrustes Stretched]

The government has no Constitutional authority to bail out failed businesses.

is that a personal opinion or is it based on something concrete within the Constitution?

Yes, it does disturb me considering that they are the final word on constitutionality.

Why? Somebody has to be. Would you prefer it be the Executive or the Congress or the individual states? Maybe a referendum process?

 

[Procrustes Stretched]

Again, wrong. As soon as the issue came up, in Marbury v Madison, it was ascertained that the ONLY way to keep the legislature and the executive from acting unconstitutionally was the Court.

Where are you getting your information?

maybe from Spike?

 

[Kevin_Kennedy]

Again, wrong. As soon as the issue came up, in Marbury v Madison, it was ascertained that the ONLY way to keep the legislature and the executive from acting unconstitutionally was the Court.

Where are you getting your information?

Perhaps you missed my examples of the New England states nullifying Jefferson's Embargo Act, and President Jackson disbanding the Bank of the United States despite the opinion of the Supreme Court that it was Constitutional.

 

[Kevin_Kennedy]

Please, I'm begging you... the general welfare clause allows the government to take almost any action it deems necessary.

You really do need to read some con law.

Seriously. This issue goes back to the New Deal. Stop it.

And like it or not... and yes, there are times I haven't liked it... the Court needs to be out of reach of the ballot box so people who have no idea of appropriate constitutional construction can't mess up the court or force them to make stupid decisions.

If that is what the general welfare clause was meant to do then why have a Constitution at all? Just let the government run un-checked.

 

[Procrustes Stretched]

Perhaps you missed my examples of the New England states nullifying Jefferson's Embargo Act, and President Jackson disbanding the Bank of the United States despite the opinion of the Supreme Court that it was Constitutional.

Would you like to see more of this tension between the Federal guv and the states? Would it benefit society and if so how?

 

[Kevin_Kennedy]

is that a personal opinion or is it based on something concrete within the Constitution?

Why? Somebody has to be. Would you prefer it be the Executive or the Congress or the individual states? Maybe a referendum process?

Well since the Constitution was meant to constrain the federal government, it's based on that.

I would suggest we restore states' rights, and allow every branch and the states to decide on the constitutionality of a law. In other words, the way it was meant to be.

 

[Kevin_Kennedy]

Would you like to see more of this tension between the Federal guv and the states? Would it benefit society and if so how?

There need be no tension if the government adhered to the Constitution.

 

[jillian]

Well since the Constitution was meant to constrain the federal government, it's based on that.

I would suggest we restore states' rights, and allow every branch and the states to decide on the constitutionality of a law. In other words, the way it was meant to be.

Again that ISN'T what the Constitution was intended to do.

You haven't a clue how it was meant to be...... only the Court can tell you what it was intended to be. If it was as YOU believe it was intended to be, then again we'd still have the articles of confederation. And we don't.

Try reading the cases or a good book on constitutional construction. Until then, you're just another libertarian idealogue who hates the government. And just to explain to you how it works, we have a civil law system. That means it isn't solely statutory. It is a combination of statute and construction by caselaw. End of story.

 

[Procrustes Stretched]

Would you like to see more of this tension between the Federal guv and the states? Would it benefit society and if so how?

There need be no tension if the government adhered to the Constitution.

really?


Of course there would. That is why there is judicial review.

 

[Procrustes Stretched]

Well since the Constitution was meant to constrain the federal government, it's based on that.

I would suggest we restore states' rights, and allow every branch and the states to decide on the constitutionality of a law. In other words, the way it was meant to be.

ahhh, a flawed understanding of things mixed with an ideological bent. hmmm, I do respect your right to hold such opinions as much as I hold them in contempt.

 

[Kevin_Kennedy]

Again that ISN'T what the Constitution was intended to do.

You haven't a clue how it was meant to be...... only the Court can tell you what it was intended to be. If it was as YOU believe it was intended to be, then again we'd still have the articles of confederation. And we don't.

Try reading the cases or a good book on constitutional construction. Until then, you're just another libertarian idealogue who hates the government. And just to explain to you how it works, we have a civil law system. That means it isn't solely statutory. It is a combination of statute and construction by caselaw. End of story.

Ok, then what was the Constitution intended to do? Because if that's not what it was intended to do then it doesn't need to exist at all.

Well since the court is a part of the government, I'll assume that the court would tell me that they have final say on all matters Constitutional.