The Roots of the U.S. Constitution

[DGS49]

Imagine a small group of contiguous countries in Africa, each struggling with problems because of its small size and threatened from outside forces.

They a convene a meeting of their leaders and come up with an idea to connect their countries for their common benefit. Each will remain an independent country, but for the functions and purposes for which consolidation seems most efficient or appropriate, they consolidate. They draw up a Charter including a list of functions that are most logical to be consolidated: postal service and interconnecting roads, a consolidated army and navy, a consolidated patent and copyright function, a unified currency, and so on. Then they figure out how the consolidated government should be structured, and provide a tax structure that is sufficient to support it, but not sufficient to allow it to get too big. For example, the consolidated government will not be allowed to collect INCOME TAXES on companies or the population at large. To make sure there is no question about the limited scope of this umbrella government (the original countries remaining of most importance), they explicitly state in the Charter that the consolidated government has only the specific powers set forth for the consolidated government in the Charter; everything else remains for the individual countries to control.

Of course the Charter they come up with is, basically, the U.S. Constitution. For the list of centralized functions, see Article I, Section 8. For the explicit limitation of the powers of the central government, see the Tenth Amendment.

Many Americans are confused by the term "States," and in their unsophisticated minds they think that a "state" is a part of a "country," but that is not the case now, nor has it ever been. The words, "State" and "Country" mean the same thing. Note the talk about a "Two-State solution" in Palestine. Two "states" = two countries.

There are many people on the Political Left in this country who know what the Constitution says and what it means, but simply don't like it. They think the Federal government should be able to do anything that Congress thinks [or rather, the Democrats in Congress think) is a good idea.

They play on the ignorance of the Public regarding the Constitution, and when questions of the constitutionality of, say, The Affordable Care Act, come up, they point to wording in the Preamble and in Article I about promoting the "general welfare," and claim that these words give Congress carte blanche to do anything they want to do - States be damned.

But people who have actually studied the history of Con Law know that the USSC has repeatedly rejected this reasoning, noting that if the Founders had wanted Congress to have the power to do anything they wanted for the General Welfare, they would not have listed 17 specific powers, and stipulated that the powers not granted to the Federal Government in the Constitution were reserved to the States and the People.

This is not difficult, but when you combine the millions who just don't like what the Constitution says with the millions who don't know what the Constitution says, we have a pretty large subversive group. And then you combined those people with their Fellow Travelers in the MSM, we have a situation where anyone who tries to constrain the Federal Government to its Constitutional powers is characterized as a radical, right-wing nut job.

Perverse, isn't it?

 

[longknife]

Nice post. It would be nice if they taught constitutional history in the American school system.

How many realize the true bases for confederation in the original meaning? Or where it came from?

 

[regent]

Where in the Constitution did the framers give the Supreme Court the power to declare acts of Congress and states as unconstitutional? As most know the Court took that power unto itself in the famous Marbury case.

 

[C_Clayton_Jones]

Where in the Constitution did the framers give the Supreme Court the power to declare acts of Congress and states as unconstitutional? As most know the Court took that power unto itself in the famous Marbury case.

Incorrect.

Articles III and VI of the Constitution authorize the Supreme Court to review the constitutionality of Federal and state laws, and to invalidate laws repugnant to the Constitution.

Moreover, the doctrine of judicial review practiced in Colonial courts for well over a century before the advent of the Foundation Era also authorizes the Supreme Court to determine what the Constitution means, and to strike down state and Federal measures that fail to pass Constitutional muster:

'By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.” As such, contrary to the traditional account of Marbury, Marshall’s decision did not conjure judicial review out of thin air, but rather affirmed the well-established and long-practiced idea of limited legislative authority in the new context of the federal republic of the United States. In doing so, Marshall recommitted American constitutional law to a practice over four centuries old.'

Why We Have Judicial Review

Consequently, Marbury recognized the settled and accepted doctrine of judicial review, where the Supreme Court in no way “took that power unto itself,” instead exercising the authority granted it and other appellate courts, the progeny of centuries of Anglo-American judicial tradition dating back to the Magna Carta and the Assizes of Henry II.

 

[regent]

Might check on any the Constitution

Where in the Constitution did the framers give the Supreme Court the power to declare acts of Congress and states as unconstitutional? As most know the Court took that power unto itself in the famous Marbury case.

Incorrect.

Articles III and VI of the Constitution authorize the Supreme Court to review the constitutionality of Federal and state laws, and to invalidate laws repugnant to the Constitution.

Moreover, the doctrine of judicial review practiced in Colonial courts for well over a century before the advent of the Foundation Era also authorizes the Supreme Court to determine what the Constitution means, and to strike down state and Federal measures that fail to pass Constitutional muster:

'By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.” As such, contrary to the traditional account of Marbury, Marshall’s decision did not conjure judicial review out of thin air, but rather affirmed the well-established and long-practiced idea of limited legislative authority in the new context of the federal republic of the United States. In doing so, Marshall recommitted American constitutional law to a practice over four centuries old.'

Why We Have Judicial Review

Consequently, Marbury recognized the settled and accepted doctrine of judicial review, where the Supreme Court in no way “took that power unto itself,” instead exercising the authority granted it and other appellate courts, the progeny of centuries of Anglo-American judicial tradition dating back to the Magna Carta and the Assizes of Henry II.

Tradition, Marshall's quotes, a long practiced idea, nor four centuries put the power in black and white in the Constitution. It is one of the first things most high school students learn in their government class when studying the Constitution.
The Court took that phase upon themselves, but because the Court protested the Congress assigning judicial powers to the Court in the Judiciary Act 1789 they had the right to protest, one branch assigning duties to another branch. That was not separation of powers, and the Court used the opportunity to slip in judicial review and the nation accepted.

 

[DGS49]

Regardless of the "Constitutional" basis for judicial review - we are stuck with it - since the 1930's the USSC has abused the right to review & interpret, and often converted it into a right to modify, refute, and ignore valid laws, and even make up their own "Constitutional" principles, "out of whole cloth," as they like to say.

For one egregious example, consider the "Constitutional" right of privacy. There is no such right in the Constitution, and even the Court admitted that it was a made-up thing, inferred from various hints ("emanations" and "penumbras") that it alone found in the text of the Bill of Rights.

But even if such a right could be found, "privacy" implies a prohibition on the State surreptitiously watching, listening, recording, or otherwise discovering private behavior - a logical extension of the Fourth Amendment's prohibition of "unreasonable searches and seizures." But since the Right of Privacy was completely made-up, it could mean anything that the Court wanted it to mean. So under the Right of Privacy, the state of Connecticut was prohibited from outlawing artificial birth control pills. It became "Unconstitutional" for a state to outlaw homosexual sodomy. And by logical extension (in connection with other "Constitutional" principles, a state cannot deny "marriage" to a couple of men.

Which of course begs the questions: How about three men? Two men and a woman? Father and adult daughter (or son)? Don't they have privacy too?

See what I mean? Once the cat is out of the bag - once this made up right is well-established, it can mean just about anything the Court wants it to mean.

And from a moral standpoint, the actions of the Federal Courts on the abortion issue dwarf the crimes against humanity of the Third Reich. In 1960, EVERY SINGLE U.S. STATE recognized that a baby in the womb was human, and every single state criminalized abortion (though none treated it as a homicide). In the 1960's and moving toward 1973, some states were passing legislation that permitted abortion under some limited circumstances, and abortion was gradually becoming available for just about any female who had typical middle-class resources in most states.

CLEARLY, this was a matter for the legislative branches of government in the states and in Washington, DC, because the Constitution was and is totally silent on the issue of when a fetus becomes a "person" for Constitutional purposes. Ideally, a Constitutional Amendment was required, incorporating the consensus view of the Federal and State governments.

But rather than act with appropriate humility in RvW, and throwing it back to the Legislative Branch, the USSC - based on the made-up right of privacy - decreed, amidst more than a hundred pages of blather, that a fetus became a person at the time of viability, which was presumed to be the beginning of the seventh month of pregnancy. But of course other Federal courts blew through that flawed but at least logical milestone so fast it was invisible to the naked eye. Now, it is basically "Constitutional" to kill a baby right up until the moment before live birth, based on the mother's "right to choose," which in turn in based on her "right of privacy."

Baloney on steroids.

 

[regent]

There is probably no way to get politics out of Supreme Court decisions. Perhaps some day a computer program might be created but until them it's a lot of politics with too many judges unable or unwilling to separate their politics from the Constitution. But in all fairness some judges have been able to decide for America rather than their political beliefs. Meaning, of course, that those judges agree with me.

 

[DGS49]

The more pages in any Supreme Court decision, the more likely it is that the Court is making shit up. It takes no more than a couple of paragraphs to point out where a law or lower court finding is unconstitutional. There is no need for a USSC justice to be a "brilliant legal scholar." Most of the cases and principles are fairly simple; but it takes legal scholarship skills to take a provision in the Constitution that clearly means one thing, and "interpret" it to mean something entirely different. Consider the early Affirmative Action decisions, or the school busing decisions of the 1970's.

 

[JakeStarkey]

DGS49, you, hopefully, do not teach government, politics, or history in any educational setting, public or private.

Article III and Article VI of the Constitution empower SCOTUS to make such decisions as discussed above.

 

[longknife]

Most opinions are written by their clerks.

 

[JakeStarkey]

"Most opinions are written by their clerks" with their boss's direction, guidance, and review.

 

[jillian]

Most opinions are written by their clerks.

drafts are done by the clerks. research is done by the clerks. the judge decides WHAT they want to say and how they want to decide. perhaps you can explain why you think the involvement of the judges' clerks is relevant.

 

[longknife]

Most opinions are written by their clerks.

drafts are done by the clerks. research is done by the clerks. the judge decides WHAT they want to say and how they want to decide. perhaps you can explain why you think the involvement of the judges' clerks is relevant.

As you indicated - the clerks do the scutt work and present their recommendations to the justices. The justices then base their opinions upon that information. And, the clerks generally know the philosophies of the justices and therefore seek information matching those views.