Why Lawyers Don’t Understand Law Part I

[George Costanza]

Of course they (the courts) have that power....as long as it comports with the language and original meaning of the only document the people of the United Stated consented to be governed by.

And who determines whether or not the court (or a judicial decision on a constitutional issue) is "comporting with the language and original meaning" of the Constitution?

Post #30.

"Here's how it is done:


As a basis for understanding the Commerce Clause, Randy Barnett, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist, 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.’"



Really, Georgie, you should understand this.

1. The above. Scholarship should certainly not be beyond our hightest judicial experts....should it?


2. If the Constitution says nothing about the issue, then the question should fall back upon the decisions of the Legislature and President.

This my thinking when I predicted that ObamaCare would be held constitutional.


Had the Justices found against as healthcare is not in the enumerated powers, I would have been happier....but it is within their taxing power. So said the Court.


3. Your position is that of Justice Brennan, that of a 'living' Constitution wherein good outcomes (social justice) is the aim, and the basis of court decisions. Therefore, judges can claim what they wish...without homage to the Constitution.

I'm prepared to argue against that, too.


While there is nothing 'whacko' about my position....I find your the self-serving view of jurists who see themselves as the equal of the Founders.

And, they are not.

This is pure gibberish and has nothing to do with the question asked. You say that the courts must "comport with the original language of the Constitution." I ask you again: WHO determines whether or not the court (or a judicial decision on a constitutional issue) is "comporting with the language and original meaning" of the Constitution?

Answer that question in your own words, in a simple sentence. It isn't that difficult, although I doubt that you have the mental ability to do it.

 

[del]

So where does 'whacko' reside?

in your threads.

You certainly haven't been able to prove that, have you.

you do a wonderful job all by yourself, chunky

 

[George Costanza]

"In Marbury v. Madison, (1803) the Supreme Court reaffirmed that the Constitution gave the Court the authority of judicial review - that is, it empowered the Court to review acts of the Legislative, and, by extension, Executive, branches to evaluate whether legislation was constitutional. If found unconstitutional, the Court could overrule the law."



What is Marbury v. Madison and why is it a landmark case in the history of the US Supreme Court

You may not like it, Chunky, but that's the way it is.

 

[PoliticalChic]

"In Marbury v. Madison, (1803) the Supreme Court reaffirmed that the Constitution gave the Court the authority of judicial review - that is, it empowered the Court to review acts of the Legislative, and, by extension, Executive, branches to evaluate whether legislation was constitutional. If found unconstitutional, the Court could overrule the law."



What is Marbury v. Madison and why is it a landmark case in the history of the US Supreme Court

You may not like it, Chunky, but that's the way it is.

One would think that basic vocabulary is not beyond you.
Yet...it seems not to be the case.


re·view
/riˈvyo͞o/
Noun
A formal assessment or examination of something.


al·ter
/ˈôltər/
Verb
Change or cause to change in character or composition, typically in a comparatively small but significant way.
Make structural changes to (a building).

 

[George Costanza]

"In Marbury v. Madison, (1803) the Supreme Court reaffirmed that the Constitution gave the Court the authority of judicial review - that is, it empowered the Court to review acts of the Legislative, and, by extension, Executive, branches to evaluate whether legislation was constitutional. If found unconstitutional, the Court could overrule the law."



What is Marbury v. Madison and why is it a landmark case in the history of the US Supreme Court

You may not like it, Chunky, but that's the way it is.

One would think that basic vocabulary is not beyond you.
Yet...it seems not to be the case.


re·view
/riˈvyo͞o/
Noun
A formal assessment or examination of something.


al·ter
/ˈôltər/
Verb
Change or cause to change in character or composition, typically in a comparatively small but significant way.
Make structural changes to (a building).

If you had to sum up IN ONE SENTENCE, using YOUR OWN WORDS what you are trying to say in this thread, what would it be?

Let me try it. "The only legal way to change the Constitution is by the will of the people, not by judicial decision." Would you agree that this is your position?

If not, would you please state IN ONE SENTENCE, using YOUR OWN WORDS, what you are trying to say in this thread. Please set aside the smart-ass, cute responses just for once and provide a rational answer.

Thank you.

 

[PoliticalChic]

"In Marbury v. Madison, (1803) the Supreme Court reaffirmed that the Constitution gave the Court the authority of judicial review - that is, it empowered the Court to review acts of the Legislative, and, by extension, Executive, branches to evaluate whether legislation was constitutional. If found unconstitutional, the Court could overrule the law."



What is Marbury v. Madison and why is it a landmark case in the history of the US Supreme Court

You may not like it, Chunky, but that's the way it is.

One would think that basic vocabulary is not beyond you.
Yet...it seems not to be the case.


re·view
/riˈvyo͞o/
Noun
A formal assessment or examination of something.


al·ter
/ˈôltər/
Verb
Change or cause to change in character or composition, typically in a comparatively small but significant way.
Make structural changes to (a building).

If you had to sum up IN ONE SENTENCE, using YOUR OWN WORDS what you are trying to say in this thread, what would it be?

Let me try it. "The only legal way to change the Constitution is by the will of the people, not by judicial decision." Would you agree that this is your position?

If not, would you please state IN ONE SENTENCE, using YOUR OWN WORDS, what you are trying to say in this thread. Please set aside the smart-ass, cute responses just for once and provide a rational answer.

Thank you.

You know, Georgie....the amendment process.


Actually....every one of my posts is rational.

Do you need me to define that, too?

 

[Too Tall]

George Costanza

You may not like it, Chunky, but that's the way it is.

George Costanza

Please set aside the smart-ass, cute responses just for once and provide a rational answer.

I would tell you to fuck off, but I don't think PC will.

 

[del]

George Costanza

You may not like it, Chunky, but that's the way it is.

George Costanza

Please set aside the smart-ass, cute responses just for once and provide a rational answer.

I would tell you to fuck off, but I don't think PC will.

fuck off

 

[C_Clayton_Jones]

1. “Chief Justice John Marshall offered [this] in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.” Judges are part of the government…Marshall wrote that the Constitution represents “the intention of the people.” Intention is expressed through the meaning, not merely the form, of words. …The Constitution could not continue to be the intention of the people if its meaning could be changed by anyone but the people. Quoting George Washington, the Rhode Island Constitution declares that “the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
What Is the Constitution? - By Orrin Hatch - The Corner - National Review Online





2. So….how to understand what was meant when the Constitution was written? 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 in which 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.’





3. Everything changed when Progressives took over law schools. They taught law students a) that there was no natural law, nor unalienable rights, and b) that the Constitution is altered by case law. This meant American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.

a. Roscoe Pound (1870-1964), Dean of Harvard Law School, instituted the "taught legal tradition." Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.” Roscoe Pound - definition of Roscoe Pound by the Free Online Dictionary, Thesaurus and Encyclopedia.
What was evident in his first published book in law, common with Progressives, was his deep indebtedness to German modes of thinking.

b. Pound sought to adjust principles and doctrines of law to the realities of the human condition…. wanted to extract wisdom from German social science to apply to American law.: law must leave "conceptions" and open itself up to social realities of the modern world.”… the backwardness of law in meeting social ends,…”
roscoe pound and jurisprudence and 1903 and nebraska and harvard law school

c. He was perhaps the chief U.S. advocate of sociological jurisprudence, which holds that statutes and court decisions are affected by social conditions; his ideas apparently influenced the New Deal programs of Pres. Franklin D. Roosevelt. Roscoe Pound: Biography from Answers.com





Again....the premise is that judges are wiser than the Founders.....

...and that their decisions for social justice surpass the guidance of the Constitution. All current lawyers have been taught this.
Some rise above it.


At the Senate hearings for Judge Robert's Supreme Court nomination, Senator Schumer asked Roberts if the 'little guy' would get special consideration in the court.

"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts told senators. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."
Read more: Roberts Sworn In as Chief Justice | Fox News


Of course, that is not the view of Progressives.
Most lawyers are Progressives.

Such a sad, confused, and ignorant post.

One assumes that due to the comprehensive failure of this thread, there won’t be a ‘Part II.’

There is common law and statutory law, the former based on case law, and the latter created by Congress and other legislative entities. Statutory law ‘trumps’ common law, and indeed the great bulk of our laws are now statutory.

So much for the OP’s common law/’code’ law nonsense.

The OP also makes the mistake of perceiving the Constitution as the ‘beginning’ of something, when it is not.

The Constitution is the culmination of centuries of Anglo-American judicial tradition, the zenith of Anglo-American jurisprudence; and at the core of the Constitution’s judicial genius is the doctrine of judicial review and the judiciary’s authority to interpret the law pursuant to that doctrine.

Judicial review predates the Constitution, was practiced by the Colonial courts, and both the Founding Generation and the Framers expected laws passed by Congress to be subject to judicial review in the context of the Constitution’s case law.

Judicial review is authorized by the First Amendment, where the Constitution guarantees the people the right ‘to petition the Government for a redress of grievances.’

And the venue for the people to petition the Government for a redress of grievances is the Federal courts, where the people may seek relief from government excess resulting in laws that excessively restrict or preempt the exercising of a civil right.

As to stare decisis, as Justice Kennedy observed in Lawrence:

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision’ ”) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855—856; see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”).

LAWRENCE V. TEXAS

Consequently, there is nothing capricious or ‘activist’ when a previous ruling is overturned by a judge or court; decisions such as Plessey clearly manifested ‘jurisprudence of doubt,’ and are struck down appropriately.

As to the fallacy of ‘originalism,’ George Costanza has already correctly noted the case law, Marbury v. Madison (1803), acknowledging the accepted and settled doctrine of judicial review and the Court’s interpretive authority accordingly.

See also McCulloch v. Maryland (1819), where the Court recognized that the Constitution affords Congress powers both expressed and implied, where the ‘argument’ that something ‘isn’t in the Constitution’ is completely irrelevant, and further reinforces the fact that the Supreme Court does indeed determine what the Constitution means.

Last, as seems now mandatory in this and similar failed threads on the topic, we’ll close with Justice Kennedy’s brilliant summation from Lawrence as to how the Framers intended the Constitution to function:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

 

[Too Tall]

George Costanza

You may not like it, Chunky, but that's the way it is.

George Costanza

Please set aside the smart-ass, cute responses just for once and provide a rational answer.

I would tell you to fuck off, but I don't think PC will.

fuck off

That makes two dipshits that make smart-ass, cute and insulting responses and don't like one thrown back at them.

 

[George Costanza]

One would think that basic vocabulary is not beyond you.
Yet...it seems not to be the case.


re·view
/riˈvyo͞o/
Noun
A formal assessment or examination of something.


al·ter
/ˈôltər/
Verb
Change or cause to change in character or composition, typically in a comparatively small but significant way.
Make structural changes to (a building).

If you had to sum up IN ONE SENTENCE, using YOUR OWN WORDS what you are trying to say in this thread, what would it be?

Let me try it. "The only legal way to change the Constitution is by the will of the people, not by judicial decision." Would you agree that this is your position?

If not, would you please state IN ONE SENTENCE, using YOUR OWN WORDS, what you are trying to say in this thread. Please set aside the smart-ass, cute responses just for once and provide a rational answer.

Thank you.

You know, Georgie....the amendment process.


Actually....every one of my posts is rational.

Do you need me to define that, too?

I knew it. What you are trying to say in this thread is: "The amendment process"? I see. And you couldn't resist the cute stuff either, could you?

When you want to enter into a serious discussion about something, come look me up.

 

[George Costanza]

Such a sad, confused, and ignorant post.

She's being intentionally obtuse. Don't waste your time on her.

 

[C_Clayton_Jones]

Such a sad, confused, and ignorant post.

She's being intentionally obtuse. Don't waste your time on her.

Unfortunately she’s not alone.

 

[PoliticalChic]

1. “Chief Justice John Marshall offered [this] in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.” Judges are part of the government…Marshall wrote that the Constitution represents “the intention of the people.” Intention is expressed through the meaning, not merely the form, of words. …The Constitution could not continue to be the intention of the people if its meaning could be changed by anyone but the people. Quoting George Washington, the Rhode Island Constitution declares that “the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
What Is the Constitution? - By Orrin Hatch - The Corner - National Review Online





2. So….how to understand what was meant when the Constitution was written? 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 in which 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.’





3. Everything changed when Progressives took over law schools. They taught law students a) that there was no natural law, nor unalienable rights, and b) that the Constitution is altered by case law. This meant American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.

a. Roscoe Pound (1870-1964), Dean of Harvard Law School, instituted the "taught legal tradition." Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.” Roscoe Pound - definition of Roscoe Pound by the Free Online Dictionary, Thesaurus and Encyclopedia.
What was evident in his first published book in law, common with Progressives, was his deep indebtedness to German modes of thinking.

b. Pound sought to adjust principles and doctrines of law to the realities of the human condition…. wanted to extract wisdom from German social science to apply to American law.: law must leave "conceptions" and open itself up to social realities of the modern world.”… the backwardness of law in meeting social ends,…”
roscoe pound and jurisprudence and 1903 and nebraska and harvard law school

c. He was perhaps the chief U.S. advocate of sociological jurisprudence, which holds that statutes and court decisions are affected by social conditions; his ideas apparently influenced the New Deal programs of Pres. Franklin D. Roosevelt. Roscoe Pound: Biography from Answers.com





Again....the premise is that judges are wiser than the Founders.....

...and that their decisions for social justice surpass the guidance of the Constitution. All current lawyers have been taught this.
Some rise above it.


At the Senate hearings for Judge Robert's Supreme Court nomination, Senator Schumer asked Roberts if the 'little guy' would get special consideration in the court.

"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts told senators. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."
Read more: Roberts Sworn In as Chief Justice | Fox News


Of course, that is not the view of Progressives.
Most lawyers are Progressives.

Such a sad, confused, and ignorant post.

One assumes that due to the comprehensive failure of this thread, there won’t be a ‘Part II.’

There is common law and statutory law, the former based on case law, and the latter created by Congress and other legislative entities. Statutory law ‘trumps’ common law, and indeed the great bulk of our laws are now statutory.

So much for the OP’s common law/’code’ law nonsense.

The OP also makes the mistake of perceiving the Constitution as the ‘beginning’ of something, when it is not.

The Constitution is the culmination of centuries of Anglo-American judicial tradition, the zenith of Anglo-American jurisprudence; and at the core of the Constitution’s judicial genius is the doctrine of judicial review and the judiciary’s authority to interpret the law pursuant to that doctrine.

Judicial review predates the Constitution, was practiced by the Colonial courts, and both the Founding Generation and the Framers expected laws passed by Congress to be subject to judicial review in the context of the Constitution’s case law.

Judicial review is authorized by the First Amendment, where the Constitution guarantees the people the right ‘to petition the Government for a redress of grievances.’

And the venue for the people to petition the Government for a redress of grievances is the Federal courts, where the people may seek relief from government excess resulting in laws that excessively restrict or preempt the exercising of a civil right.

As to stare decisis, as Justice Kennedy observed in Lawrence:

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision’ ”) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855—856; see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”).

LAWRENCE V. TEXAS

Consequently, there is nothing capricious or ‘activist’ when a previous ruling is overturned by a judge or court; decisions such as Plessey clearly manifested ‘jurisprudence of doubt,’ and are struck down appropriately.

As to the fallacy of ‘originalism,’ George Costanza has already correctly noted the case law, Marbury v. Madison (1803), acknowledging the accepted and settled doctrine of judicial review and the Court’s interpretive authority accordingly.

See also McCulloch v. Maryland (1819), where the Court recognized that the Constitution affords Congress powers both expressed and implied, where the ‘argument’ that something ‘isn’t in the Constitution’ is completely irrelevant, and further reinforces the fact that the Supreme Court does indeed determine what the Constitution means.

Last, as seems now mandatory in this and similar failed threads on the topic, we’ll close with Justice Kennedy’s brilliant summation from Lawrence as to how the Framers intended the Constitution to function:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

1. "Such a sad, confused, and ignorant post."
Now, now, C_Chamber_Pot....I know that the OP is none of those adjectives....nor do I believe you found it so.

Rather, you are annoyed that this layperson saw through the obfuscations and fog thrown up in order to provide the legal profession with aggrandizement and power.
Isn't that the case?


2. In fact...you knew nothing of the grand designs of Progressives Langdell and Pound until I revealed same to you.
True?




3. And, I'll bet that it is just now dawning on you that the one and only legal way to change the direct and evident meaning of the Constitution is the amendment process.
True?



4. As for the bulk of your post....Dr. Phyllis Chesler, writes in her book, "The Death of Feminism," about folks who attempt to obfuscate, to cloud the issue....and why they do so:

Academic feminists who received tenure, promotion, and funding, tended to be pro-abortion, pro-pornography (anti-censorship), pro-prostitution (pro-sex workers), pro-surrogacy, and anti-colonialist, anti-imperialist, and anti-American…proponents of simplistic gender-neutrality (women and men are exactly the same) or essentialist: men and women are completely different, and women are better. They are loyal to their careers and their cliques, not to the truth. [In their writing, they] have pretended that brilliance and originality can best be conveyed in a secret, Mandarin language that absolutely no one, including themselves, can possibly understand…and this obfuscation of language has been employed to hide a considerable lack of brilliance and originality and to avoid the consequences of making oneself clear.




5. And...speaking of avoiding....I've asked you for your opinion of Obama and Justice Kagan being in favor of curtailing the freedom of speech, an unalienable right.....

Of course, Progressives don't believe that there are any rights that government cannot take away.
True?



6. And....don't miss part II:

http://www.usmessageboard.com/law-a...why-lawyers-don-t-understand-law-part-ii.html

You'll love the William Rehnquist part.

 

[PoliticalChic]

Such a sad, confused, and ignorant post.

She's being intentionally obtuse. Don't waste your time on her.

Georgie....this is getting to be a habit.

ob·tuse
/əbˈt(y)o͞os/
Adjective
Annoyingly insensitive or slow to understand.
Difficult to understand.


Try to stick to words that you can define.
Clearly I'm not slow in any way.....
....and if there is a difficulty in comprehension, it is yours....
but I am annoying you, by supporting my perspective...something you seem incapable of doing.



It's really simple, and I cannot say it any better than Rehnquist did:

"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


You were saying?