Where Did Our Republic Go??

[Dragon]

But...under no circumstances can any judge or Justice be allowed to replace the Constitution with his or her ideology.

On no occasion can it be proven to the satisfaction of all informed parties that any judge has ever done so.

 

[Procrustes Stretched]

Of course you show a lack of understanding of the view of an originalist....
....let me help:


1. Originalists begin with the belief that ours should be a government of laws, and not one of men, or of judges, and this book addresses that question of judicial philosophy.

a. “The originalism looks to the original public-meaning of the Constitution and its amendments at the time they were enacted. The meaning of the Constitution must remain the same, until it is properly changed. And it cannot be changed unilaterally by the courts, or even by courts acting in conjunction with other branches of government.” Professor Randy Barnett, in “Originalism,” p. 262.


2. Attorney-general Edwin Meese, III’s speech to the ABA, July 9, 1985, called for Jurisprudence of Original Intention, focusing on several themes. The first is the primacy of the rule of law.
Thomas Paine said, “America has no monarch: Here the law is king.” Originalists believe that the written Constitution is our most fundamental law and that it binds us all. Justices who abandon the original meaning of the text of the Constitution invariably end up substituting their own political philosophies for those of the framers. Americans have to decide whether they wish a government of laws or one of judges.

a. There is no liberal or conservative meaning of the text of the Constitution, only a right meaning or a wrong meaning. Those who convert the Constitution into a license for judges to make policy instead of being a limit on the power of judges, pervert a document that is supposed to limit power into one that sanctions it.


3. Note, it is only the text of the written Constitution to which we the people of the United States have given our consent, never having consented to be governed in a formal way by the five hundred volumes of the U.S. Reports. We know from the D of I that a precept of our order is that it is the people who must consent to governance.

4. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’


b. Consider the opposite view, in the words of Chief Justice Hughes: “The Constitution is what the judges say it is.” Correct? Or hubris?

1) Originalists do NOT own the idea that "ours should be a government of laws, and not one of men..."

2) Original intent? Madison himself said look for original intent from the understanding of ratifiers (the people as opposed to state legislatures or congress) and not the framers.

What exactly did Thomas Paine have to do with the Constitution that makes his words worthier than the words of others? and you mention 'original meaning of the text' which seems like a voodoo attempt to divine what a supposedly reasonable person of the past would have understood a word (as opposed to idea?) to have meant.

a. there are always different understandings of words and terms where people are concerned. In law we may attempt top enforce agreement, but if we take Madison at his word we should be looking to what the intentions of people collectively were, not some legal meaning of the text itself, which itself can be liberal or conservative.

3) We the people give our consent. How about those the people who gave consent before us? What they intended is what we intend? What if we disagree with the people of the past who consented to be governed in a different way? Do we have to obey the Constitution and go the amendment route, or do we announce our right to refuse to be governed by the intent of the past and an old document? Your arguments lead down a very slippery slope where anarchy attains legitimacy. Just speak with a few of the sovereign people crowd. I met a few at occupy meetings -- nuts!

4) One professor and Justice Thomas say ... I guess it's case closed, eh?

a. then you disagree with Madison and Hamilton, and your authority rests with Justice Thomas?

b. Chief Justice Hughes may have been correct even while being afflicted with hubris, the two things are not exclusive of one another.

". there are always different understandings of words and terms where people are concerned. In law we may attempt top enforce agreement, but if we take Madison at his word we should be looking to what the intentions of people collectively were, not some legal meaning of the text itself, which itself can be liberal or conservative."


I believe we can short-circuit this discussion in the following way:
If there is any debate about the meaning, the text- which is more important than any interpretation- the constitutionality must be tied to the actual language of the Constitution.

If that is not possible, then, a) the law must be found constitutional or
b) the Constitution must be amended to incorporate the view.

But...under no circumstances can any judge or Justice be allowed to replace the Constitution with his or her ideology.

Problem has always been that people of good faith almost always remain silent when a Judge's ideological based reasoning and interpretation supports their own ideological views. Take Madison and Jefferson for example...

 

[regent]

What is ironic is that all the poster's solutions require an interpretation of the Constitution by humans. Marshall interpreted the Constitution to mean the Court should be the final interpreters and it became a tradition, but it might have gone the other way, the Congress might have passed a law that they were the final interpreters. Still the President might have made a case that he or she was the final word. States toyed with the idea that even they were the deciders. The Constitution still comes back to someone or some body deciding what it means and the Court was there first. Someday it may come down to a computer?

 

[Procrustes Stretched]

But...under no circumstances can any judge or Justice be allowed to replace the Constitution with his or her ideology.

On no occasion can it be proven to the satisfaction of all informed parties that any judge has ever done so.

sure it has and can. but denial is an awful thing to behold.

 

[Procrustes Stretched]

What is ironic is that...
...Someday it may come down to a computer?

What is ironic is that...
you are unaware of how this type of sentiment shows how much you really, really, really need to get a life.

 

[PoliticalChic]

But...under no circumstances can any judge or Justice be allowed to replace the Constitution with his or her ideology.

On no occasion can it be proven to the satisfaction of all informed parties that any judge has ever done so.

That's just out and out false.

1. There is the question of the proper function of the courts, and the overreach that some recognize in cases such as Lochner v. NY, and characterized as Lochnerizing…

a. Lochnerization is a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Lochnerization was first used by the U.S. Supreme Court in the early 20th century. Lochnerization is derived from the decision in Lochner v. New York, 198 U.S. 45 (U.S. 1905). Lochnerization also describes a method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation.
Lochnerization Law & Legal Definition

b. This case is often cited as an example of judicial activism in opposition to textualism, that is finding rights in the Constitution that are not in its wording.

2. Further, the view is found in Justice Wm. Brennan, jr…1985 Georgetown speech in which he supported the “transformative purpose” of the Constitution, in which he argued for an “aspiration to social justice, brotherhood, and human dignity…”

a. He claimed that General Meese’s vision was “little more than arrogance cloaked in humility” because we cannot discern how the Framers would apply moral-philosophic natural law to modern problems. Brennan denies any “static meaning,” but looks, instead, for ‘adaptability.”

b. To say that the genius of a constitution lies in the fluidity of its meaning is a little bit like saying that the genius of the brakes on your car is the way they can be used for acceleration. The whole point of having a constitution or a bill of rights is to memorialize and entrench fundamental rights so they can prevail in moments of passion.

3. I suggest you consider the view of Chief Justice Rehnquist:
"The brief writer’s version
seems instead to be based upon the proposition that federal
judges, perhaps judges as a whole, have a role of their own,
quite independent of popular will, to play in solving society’s
problems. Once we have abandoned the idea that the authority
of the courts to declare laws unconstitutional is somehow tied
to the language of the Constitution that the people adopted, a
judiciary exercising the power of judicial review appears in a
quite different light.
Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country."
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf

 

[PoliticalChic]

What is ironic is that all the poster's solutions require an interpretation of the Constitution by humans. Marshall interpreted the Constitution to mean the Court should be the final interpreters and it became a tradition, but it might have gone the other way, the Congress might have passed a law that they were the final interpreters. Still the President might have made a case that he or she was the final word. States toyed with the idea that even they were the deciders. The Constitution still comes back to someone or some body deciding what it means and the Court was there first. Someday it may come down to a computer?

1. "What is ironic is that all the poster's solutions require an interpretation of the Constitution by humans."
Welcome to our planet. We wish peace with you visitors.

2. "Congress might have passed a law that they were the final interpreters."
The people are the final interpreters via the election process.

But, in the short term, each of the three branches is an interpreter. The Congress is assumed to have vetted a law and found it to be constitutional, or it should not pass same.
The President, by signing, the same.
The Court should assume constitutionality, and find a law not so, only by a specific reference to the Constitution.
In the best of all possible worlds.

Article Six. Clause two provides that the Constitution, federal laws made pursuant to it and treaties made under its authority, constitute the supreme law of the land.

 

[regent]

The Court is a political animal, with politicians appointed for life by politicians for a purpose. The purpose: to interpret the Constitution according to political beliefs. But maybe it is that appointed for life clause that allows some judges, on occassion, to turn on his political benefactors and find for the common good. Those judges are considered turncoats, and it is those few turncoats that give the court some credence.

 

[PoliticalChic]

The Court is a political animal, with politicians appointed for life by politicians for a purpose. The purpose: to interpret the Constitution according to political beliefs. But maybe it is that appointed for life clause that allows some judges, on occassion, to turn on his political benefactors and find for the common good. Those judges are considered turncoats, and it is those few turncoats that give the court some credence.

1. Attorney-General Meese spoke at Tulane University in 1986, and caused quite a stir. He echoed President Reagan’s exceptionalist views. Celebrating the text of our written Constitution, he goes on to attack on the Supreme Court’s decisional case law.

2. In his speech, he draws a distinction between the Constitution and constitutional law. General Meese argues that only the first is the supreme law of the land. Meese quotes constitutional historian Charles Warren in the following: “"however the court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the court." Justice Frankfurter made the same point: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”

a. Indeed, if the text were not supreme over decisions, the court would not be empowered to overrule itself, as it has done more than one hundred and seventy times in its history.

3. So, it it not the particular Justices that we should focus on...as long as those appointed are true to the Constitution. Else, they should be removed.

 

[regent]

So if the Court changes its mind about a Constitutional provision how does this make text supreme and not the Court. Who decided the Court was wrong? It was the Court, that for whatever reason, not the text that decided the Court was wrong. It is the Court that decides what the text says. I refer you to Article IV, Section 2, clause 2. Notice the word "shall" does the word shall, mean maybe, could be, we'll see, or does it mean shall, must do? What did the Court say it meant?

 

[PoliticalChic]

So if the Court changes its mind about a Constitutional provision how does this make text supreme and not the Court. Who decided the Court was wrong? It was the Court, that for whatever reason, not the text that decided the Court was wrong. It is the Court that decides what the text says. I refer you to Article IV, Section 2, clause 2. Notice the word "shall" does the word shall, mean maybe, could be, we'll see, or does it mean shall, must do? What did the Court say it meant?

Your example, a good one, answers the question you pose in sentence one.

 

[JDzBrain]

I refer you to Article IV, Section 2, clause 2. Notice the word "shall" does the word shall, mean maybe, could be, we'll see, or does it mean shall, must do? What did the Court say it meant?

I will refer you to Article III, which is the ONLY part that you should be looking for instruction for defining the Judicial Branch...hence the title, The Judicial Branch. In Article III, Section 2, clause 1...it says, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..."

Who writes law? The congress AND state legislatures. Why does it say judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution? Because it is instructing the court that it's responsibility is to determine if laws written by Congress OR Legislatures were WRITTEN within the range of their AUTHORITY as defined by the Constitution...AND that all laws passed are EQUAL as to their application.

THOSE are the two things the constitution really does. Defines the powers the fed and states do and don't have respectively and directs that those powers be applied equally...WITHOUT exception!

The Supreme Court's ONLY roll is to determine if the body that writes it has the power to do so under the enumerated powers and is it equitable as defined in the constitution!

It doesn't say fair laws or interpret or ANY of that nonsense. Find those words in the constitution for me. I'll be GLAD to change my opinion if you can direct me to the place where it's said!

 

[Dragon]

The Supreme Court's ONLY roll is to determine if the body that writes it has the power to do so under the enumerated powers and is it equitable as defined in the constitution!

It doesn't say fair laws or interpret or ANY of that nonsense.

"Interpret" is implied in the power to determine if a law is Constitutional. The Court MUST interpret the document in order to come to that decision. There is simply no other way to do it.

 

[regent]

The use of the word "implied" means it the power was not written in the Constitution.
The other two branches of government and the states believed they might have some say in the interpretation but no one took the initative until Marbury. The states finally gave up their claim to interpretation with the Civil War.

 

[Dragon]

The use of the word "implied" means it the power was not written in the Constitution.

Well, yes and no. Let's consider one of the most controversial cases, the right to privacy. (Or we could even consider the power of judicial review itself -- but privacy will do.)

What the Constitution explicitly protects, in the Fourth Amendment, is a right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

This is taken to imply a right to privacy because, well, because it does: if the government respects a right to be secure in one's person, house, papers, and effects against "unreasonable" (note the subjective judgment called for in that word) searches and seizures, then ipso facto it respects a right to privacy, because that's really what privacy is. It means that the government can't spy on me, or seize my property or person or any part thereof, without proper justification (i.e. it may not do so "unreasonably").

Privacy means that the government cannot "search" my body, or my home, or my property, unless it has reason to suspect a crime is being committed.

It's kind of like mathematical induction: small particulars imply large generalities, not as an expansion of rights, but as a shorthand for rights that are in fact literally implied in what is explicitly stated.

 

[Cecilie1200]

Still here.

Just under different ownership.

You mean, someone other than the American people? How is that 1) our republic, and 2) a good thing, in your "mind"?

 

[Foxfyre]

The Supreme Court's ONLY roll is to determine if the body that writes it has the power to do so under the enumerated powers and is it equitable as defined in the constitution!

This focuses on the very heart of the matter, not only for SCOTUS but for all courts of the land. The Founders never in their wildest dreams saw that the role or function of the courts was to make law. The Court at all levels is to apply the specific clauses of the Constitution ratified by the people of the various states and/or the law passed by the elected representatives of the people. When the Court applies its own interpretation of anything and thereby writes a new law to supercede the intent of the law makers, or inappropriately applies its own interpretation to overturn the intent of the lawmakers, it has assumed a power the Founders never intended for it to have.

I think there is a segment of our society, however, so determined to change the basis of the Constitution and so determined to have their own way, they increasingly look to the courts to make those changes for them. The legislative process is too cumbersome for them and has not produced the results they wanted. And too often the courts have rendered the legislative process impotent.

And in my opinion, this is a very dangerous thing.

 

[regent]

Can the legislature write a law that violates the Constitution, can the president enforce a law in such a manner that it violates the Constitution, can a state pass a law that violates the Constitution, can the Court interpret a law that violates the Constitution? So where would that leave us, who has the final word?
In another vein, can the Court interpret the Consitution without making law?

 

[Foxfyre]

Can the legislature write a law that violates the Constitution, can the president enforce a law in such a manner that it violates the Constitution, can a state pass a law that violates the Constitution, can the Court interpret a law that violates the Constitution? So where would that leave us, who has the final word?
In another vein, can the Court interpret the Consitution without making law?

Yes, the legislature can write a law that violates the Constitution and it is a valid function of the court to rule any such law that passes to be unconstitutional IF somebody with standing challenges that law. That will happen if SCOTUS rules that the Congress cannot force a person to buy a product as is the case with Obamacare. And if a Presidential proclamation is that a Catholic organization is required to purchase a specific product, that could no doubt wind up with SCOTUS as well. Such is a proper function of the courts who are charged to ensure that the other branches of government do not overstep their legal authority.

The problem comes with the Court, at any level, makes up its own interpretation and applies that to the situation and thereby creates a new and different law based on the whims or ideology of the judge or judges.

 

[Dragon]

The Founders never in their wildest dreams saw that the role or function of the courts was to make law.

Neither has the court -- ever. Not once. You should not confuse right-wing talking points with reality.