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

[PeterS]

Roe v Wade is a bit different, in that the court actually ruled on a 'right' that isn't in the constitution, that is making law. That indeed is different. The only option to that would be a constitutional amendment, that would never pass.

The basis of Roe is that we are our own sovereign. If you take away individual sovereignty than all rights disappear. The best analogy that I know of to understand Roe is if I need a kidney transplant and you are a perfect match do I have a natural right to use you, through your kidney, to sustain my life. Well if the answer is yes then and all other rights are moot because I have no individual right to be my own authority.

Roe doesn't write law. It simply protects our right to be our own sovereign.

 

[Annie]

The basis of Roe is that we are our own sovereign. If you take away individual sovereignty than all rights disappear. The best analogy that I know of to understand Roe is if I need a kidney transplant and you are a perfect match do I have a natural right to use you, through your kidney, to sustain my life. Well if the answer is yes then and all other rights are moot because I have no individual right to be my own authority.

Roe doesn't right law. It simply protects our right to be our own sovereign.

Indeed it does 'write' law, as the individual rights are implied, they do not need to be stated, but the colonists, especially the anti-federalists, insisted on Bill of Rights that all the colonial constitutions had. The duties not stated, are reserved to the states and the people, not to be usurped by the fed. In the case of Roe, they indeed usurped.

 

[PeterS]

Then the Senate needs to do a better job rejecting some of those nominated or filibustering them.....not giving their consent because i believe our supreme court is strictly partisan in their so called interpretations alot of the times and NOT INDEPENDENT as was intended.

But that doesn't change the fact that our best bet at preventing tyranny of the majority is through an independent judiciary who is the final arbitrator. I am not arguing whether the Supreme Court is right, wrong, or rigged only that if the constitution is left solely in the hands of the elected we are sunk...

And again, if you see that that as not the case then how else can we check an unjust act, especially if the act is supported by the majority?

 

[PeterS]

Indeed it does 'write' law, as the individual rights are implied, they do not need to be stated, but the colonists, especially the anti-federalists, insisted on Bill of Rights that all the colonial constitutions had. The duties not stated, are reserved to the states and the people, not to be usurped by the fed. In the case of Roe, they indeed usurped.

How can you have a right to free speech, a right to worship as you choose, a right to bear arms, or any other rights if you have no right to be your own sovereign? If government has a natural right to control you then you have no rights whether written or not...

 

[Kevin_Kennedy]

The Constitution was meant to constrain the federal government. By allowing the federal government to have final say on what is Constitutional we allow them to decide how much power they have. Which allows them to decide that their power is essentially limitless.

There was a time when states were free to nullify a law that they felt was unconstitutional.

 

[jillian]

The Constitution was meant to constrain the federal government. By allowing the federal government to have final say on what is Constitutional we allow them to decide how much power they have. Which allows them to decide that their power is essentially limitless.

There was a time when states were free to nullify a law that they felt was unconstitutional.

Not in any of my con law classes... sorry. You've been listening to too much Rush Limbaugh and friends.

Absolutely, totally and horrifyingly absent of any actual constitutional law.

Sorry

 

[Kevin_Kennedy]

Not in any of my con law classes... sorry. You've been listening to too much Rush Limbaugh and friends.

Absolutely, totally and horrifyingly absent of any actual constitutional law.

Sorry

Then what was the Constitution meant to do? Allow the federal government to do whatever it wants? Why bother having a Constitution if it's not going to constrain the government?

I prefer Stern to Limbaugh.

It has been argued, quite truthfully in my opinion, that the Constitution and "constitutional law" are two completely different things.

 

[jillian]

Then what was the Constitution meant to do? Allow the federal government to do whatever it wants? Why bother having a Constitution if it's not going to constrain the government?

I prefer Stern to Limbaugh.

It has been argued, quite truthfully in my opinion, that the Constitution and "constitutional law" are two completely different things.

The Constitution was in fact intended to limit governmental control over the individual...a la Roe v Wade. Amazing, eh?

But it was also intended to make sure that the legislature and executive branches couldn't overstep their constitutional power... hence the Court to ascertain what is constitutional or not. If you want to understand the basis of judicial review, I'd suggest you read Marbury v Madison.

Finally, no one who knows anything about the Constituton would ever have made your last statement.

But if the Constitution were anything close to what you wish, we'd still have the articles of confederation. That ship sailed a long time ago. And the south lost the whole states' rights argument by laying it on slavery, segregation and other lovely things.

Cheers.

 

[Kevin_Kennedy]

The Constitution was in fact intended to limit governmental control over the individual...a la Roe v Wade. Amazing, eh?

But it was also intended to make sure that the legislature and executive branches couldn't overstep their constitutional power... hence the Court to ascertain what is constitutional or not. If you want to understand the basis of judicial review, I'd suggest you read Marbury v Madison.

Finally, no one who knows anything about the Constituton would ever have made your last statement.

But if the Constitution were anything close to what you wish, we'd still have the articles of confederation. That ship sailed a long time ago. And the south lost the whole states' rights argument by laying it on slavery, segregation and other lovely things.

Cheers.

But not it's control over the states? That's odd since most of the ratifiers of the Constitution would be able to recollect Great Britain's train of abuses against the colonies. Roe v. Wade is unconstitutional because the Constitution does not give the federal government the authority to regulate abortion one way or the other.

The executive and legislative branches have overstepped their Constitutional power and the judicial branch has allowed it, and thanks to the destruction of states' rights that you so gleefully brought up the states are forced to adhere to any law the federal government passes without having any say in it's Constitutionality. Which, I repeat, was not always the case.

I don't think I made a case for what I wish the Constitution was, I made a case for what it was intended to be. If we followed the Constitution, which is what I'm advocating, it wouldn't be the same as the Articles of Confederation, so I don't understand how you came to that conclusion.

 

[PeterS]

The Constitution was meant to constrain the federal government. By allowing the federal government to have final say on what is Constitutional we allow them to decide how much power they have. Which allows them to decide that their power is essentially limitless.

There was a time when states were free to nullify a law that they felt was unconstitutional.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."​

I guess I missed the part where it says to constrain government. It does seem that if constraint was the be all and end all of our constitution we would have said so in the pre-emble...

 

[Kevin_Kennedy]

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."​

I guess I missed the part where it says to constrain government. It does seem that if constraint was the be all and end all of our constitution we would have said so in the pre-emble...

To establish justice, ensure domestic tranquility, etc... one must constrain the government.

"Government is essentially the negation of liberty." - Ludwig von Mises

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." - Thomas Jefferson

If you don't believe the purpose of the Constitution is to constrain the government, then what do you believe it's purpose to be?

 

[sparky]

Imho, it's really a sign of the times to even have to ask who makes the constitutional call here in America.

i mean think about it, all we read about is sorts that argue constitutional law, or opine from some last bastion of internet free speech black hole, or argue what the founding fathers meant

meanwhile, we've already entertained Orwellian items like the Patriot Act, or Free Speech zones here

doesn't that really indicate we've opened pandora's box?

they say you can't fool all the people all the time, yet the numero uno problem i see that is the root of every economic, eviromental, or social issue i read about is population

color me foolish but ,how can an exponentially proliferating population all be free all the time?

methinks our constitution is simply showing signs of collapsing under our own growing weight here

 

[PeterS]

But not it's control over the states? That's odd since most of the ratifiers of the Constitution would be able to recollect Great Britain's train of abuses against the colonies.

Do you think the intent of the founders was to create a union with arbitrary justice? Let me refine my previous argument to States rights. Suppose my own great state of Texas decided that individuals with blue eyes had no right to marry so banned all marriage for people with blue eyes. According to your States rights argument the federal government has no say and such action by Texas is fully within the framing of our constitution. After all, there is no mention of a right to marry so this must be something left up to the states, correct?

Now tell me. Is that what you think the founders intended? Was it the intent in our founding of the Constitution to have a nation where there were one set of freedoms in one state and those same set of freedoms overturned in another state. If that was the case then I really am dumbfounded to find any purpose for a federal government. Why do you think the founders would create something we didn't need?

 

[Kevin_Kennedy]

Imho, it's really a sign of the times to even have to ask who makes the constitutional call here in America.

i mean think about it, all we read about is sorts that argue constitutional law, or opine from some last bastion of internet free speech black hole, or argue what the founding fathers meant

meanwhile, we've already entertained Orwellian items like the Patriot Act, or Free Speech zones here

doesn't that really indicate we've opened pandora's box?

they say you can't fool all the people all the time, yet the numero uno problem i see that is the root of every economic, eviromental, or social issue i read about is population

color me foolish but ,how can an exponentially proliferating population all be free all the time?

methinks our constitution is simply showing signs of collapsing under our own growing weight here

I don't agree with your last statement. The Constitution is "collapsing" because our government refuses to adhere to it. Congress passes unconstitutional laws, the President signs them into law, the Supreme Court doesn't question their Constitutionality, and the states no longer have the right to nullify unconstitutional laws. That's the problem.

 

[Steerpike]

But if each has equal authority then no one has authority and it was the founders intent to create chaos. I do not think that the case and I can see no other means to check tyranny of the majority other than an independent judiciary who allegiance is to the constitution.

If there is another means to keep a tyrannical majority in check then let me know.

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.

 

[Steerpike]

Then what was the Constitution meant to do? Allow the federal government to do whatever it wants? Why bother having a Constitution if it's not going to constrain the government?

I prefer Stern to Limbaugh.

It has been argued, quite truthfully in my opinion, that the Constitution and "constitutional law" are two completely different things.

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.

 

[PeterS]

To establish justice, ensure domestic tranquility, etc... one must constrain the government.

"Government is essentially the negation of liberty." - Ludwig von Mises

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." - Thomas Jefferson

If you don't believe the purpose of the Constitution is to constrain the government, then what do you believe it's purpose to be?

With all do respect Kevin would you stop quoting others and start thinking for yourself. I think the constitution, and the establishment of our country, was for the purpose of creating a just society for all members of society.

If not that, then we had no right nor reason to succeed from England...

 

[Steerpike]

According to your States rights argument the federal government has no say and such action by Texas is fully within the framing of our constitution. After all, there is no mention of a right to marry so this must be something left up to the states, correct?

Now tell me. Is that what you think the founders intended? Was it the intent in our founding of the Constitution to have a nation where there were one set of freedoms in one state and those same set of freedoms overturned in another state. If that was the case then I really am dumbfounded to find any purpose for a federal government. Why do you think the founders would create something we didn't need?

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).

 

[Kevin_Kennedy]

Do you think the intent of the founders was to create a union with arbitrary justice? Let me refine my previous argument to States rights. Suppose my own great state of Texas decided that individuals with blue eyes had no right to marry so banned all marriage for people with blue eyes. According to your States rights argument the federal government has no say and such action by Texas is fully within the framing of our constitution. After all, there is no mention of a right to marry so this must be something left up to the states, correct?

Now tell me. Is that what you think the founders intended? Was it the intent in our founding of the Constitution to have a nation where there were one set of freedoms in one state and those same set of freedoms overturned in another state. If that was the case then I really am dumbfounded to find any purpose for a federal government. Why do you think the founders would create something we didn't need?

Marriage should not be acknowledged by the government at any level, it should be left to the churches which are private institutions. However, I doubt very seriously that the Constitution of Texas would give the state government the authority to define marriage in any such way, and I doubt the people of Texas would stand for any such nonsense.

 

[PeterS]

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.

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?