Scotus

[Adagio]

"Your point doesn't change the fact that the extrapolation of hidden meanings out of the constitution to create new law is a way of altering the Constitution without an amendment."<


Interpretation of the Constitution depends on a variety of considerations external to the text. These include the historic practices of Congress and the President, previous judicial decisions or precedents, public expectations, practical considerations, and moral and political values. You must look at all of these in judging how the law will apply to the people. Article III leaves the power of "judicial review" implicit rather than explicit.

Nowehere does the Constitution say expressly that the courts should have the power to review the constitutionality of legislation. Nor is it a logical necessity. Despite the possibility of constitutionalism without judicial review and despite the absence of any express references in the constitutional text, the power of the courts to determine the constitutionality of legislation can fairly be viewed as implicit in Article III, which deals with the judicial power. Article III calls for the federal courts to decide cases "arising under this Constitution" - language best understood as referring to cases in which questions of constitutional law are presented for decision. In addition, Article VI says that state judges are bound by the Constitution" any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Again, this language implies that state judges must asess the constitutional validity of state laws. If the power of judicial review is given to state judges, then surely it must exist in the SCOTUS, which the Constitution empowers to hear appeals from state court judgments.

Historical evidence supports this conclusion. Several discusssions at the Constitutional Convention anticipated that the courts would exercisejudicial review. In fact, several early decisions of the Supreme Court assumedthe power of judicial review without anyone paying much attention.

The Marbury decision that made it famous was that it would defeat the purposes of a written Constitution if the courts had to enforce unconstitutional statutes. The courts must exercise judicial review because the Constitution is Law, and it is the essence of the judicial function "to say what law is".

The Marbury decision on this point has endured , and has generally been honored into the present day.

 

[jwzg]

Trust me, as a teacher I have as few rules as possible to prevent confusion and to prevent driving ME crazy. The fact is that when more words and laws are spoken and passed, someone is going to get screwed.

"To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”


It's also a very outspoken response against strict constructionism regarding the constitution. We have good reason to accept the Constitution as our basic framework of government, but we should not worship it or assume that it is perfect in every respect.

Sent from my Nokia Lumia 920 using Board Express

 

[American]

To rule on case brought before it. So if somebody brings a case claiming that a law violates the Constitution, the SC has jurisdiction to rule.

Tea party crank theories simply can't change what jurisdiction means. But that won't stop their knownothingism.




"What is JURISDICTION?


The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or ad mitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient."

Black's Law Dictionary.

Precisely why you don't garner respect, your timing sucks; the man asked you a simple question. You could have given your cut and paste answer without it. But then that's not you.

 

[Guy Incognito]

To me, the term should mean that they actively defend the document. They may not write legislation, for example declaring something to be a tax when the word "tax" is not in the bill they are judging, but they should defend constitutional principles.

What you just cited, Roberts on the Obamacare is not an example of an activist judge, it is an example of what a truly conservative judge does-- defers to the will of the legislature whenever possible. If it is possible to interpret the language of a piece of legislation in a way that is constitutional then the judge must do that rather than strike it down. The tax interpretation of the mandate is facially obvious on the statute, and to attempt to strike it down rather than interpret it constitutionally is judicial overreach by conservative activist judges like Scalia and Thomas.

 

[Harshaw]

What you just cited, Roberts on the Obamacare is not an example of an activist judge, it is an example of what a truly conservative judge does-- defers to the will of the legislature whenever possible. If it is possible to interpret the language of a piece of legislation in a way that is constitutional then the judge must do that rather than strike it down. The tax interpretation of the mandate is facially obvious on the statute, and to attempt to strike it down rather than interpret it constitutionally is judicial overreach by conservative activist judges like Scalia and Thomas.

Apparently you don't actually know what "facially obvious" means.

 

[Fisher]

What you just cited, Roberts on the Obamacare is not an example of an activist judge, it is an example of what a truly conservative judge does-- defers to the will of the legislature whenever possible......

Perhaps, or perhaps Roberts just used a liberal want to open the door to taxing abortion out of existence down the road when there is a GOP majority/President........

 

[Guy Incognito]

Perhaps, or perhaps Roberts just used a liberal want to open the door to taxing abortion out of existence down the road when there is a GOP majority/President........

I'm opting to be a Pollyanna and assume that Roberts did what he did because he's a good judge. But there may have been something more to it, sure.

 

[Fisher]

I'm opting to be a Pollyanna and assume that Roberts did what he did because he's a good judge. But there may have been something more to it, sure.

Well I am a sarcastic cynic so I always find an ulterior motive in an unexpected position. I think that decision may very well open the door to such partisan nonsense by both sides in the cloak of taxing power down the road that the Court will have to eventually have one those "The prior case was plain wrong" moments. It happens a couple times a century and we are due for one.

 

[Thoreau72]

What you just cited, Roberts on the Obamacare is not an example of an activist judge, it is an example of what a truly conservative judge does-- defers to the will of the legislature whenever possible. If it is possible to interpret the language of a piece of legislation in a way that is constitutional then the judge must do that rather than strike it down. The tax interpretation of the mandate is facially obvious on the statute, and to attempt to strike it down rather than interpret it constitutionally is judicial overreach by conservative activist judges like Scalia and Thomas.

Well, I must agree with Harshaw. It appears you are not very qualified to judge judges.

Roberts knows who butters his bread, and it appears that the insurance industry does. Yes, that is a most cynical view, but really? Nobody in Congress even mentions "tax", it is not part of the controversies raised during the discussion in court, and Roberts pulls it out of the hat like a magician pulls a rabbit.

No, I call it shameless crony capitalism, and Roberts and his cronies condone it, enable it, originate it in this case.

 

[Guy Incognito]

Roberts knows who butters his bread, and it appears that the insurance industry does. Yes, that is a most cynical view, but really? Nobody in Congress even mentions "tax", it is not part of the controversies raised during the discussion in court, and Roberts pulls it out of the hat like a magician pulls a rabbit.

No, I call it shameless crony capitalism, and Roberts and his cronies condone it, enable it, originate it in this case.

I have to wonder who, if anybody, really "butters the bread" of a Supreme Court Justice with a lifetime appointment.

Conservatives piss and moan about the tax thing like it was judicial legerdemain, but if you were paying attention at all you know that it has been talked about as a tax since day one. It is what it is, a tax. If you look at it objectively (instead of looking at it from a point of view that has been hopelessly clouded by partisan rage) that is what you see.

The fact is that this is not crony capitalism on Roberts's part. Were he a crony capitalist he would have ruled against it, which is the right-wing (including the insurance lobby) wanted, and what the rest of the right-wing cronies on the court did. Voting in favor was for the left-wing cronies. What's remarkable about this is that Roberts went against his ideology and made the right decision, like a real judge.

 

[Guy Incognito]

Well I am a sarcastic cynic so I always find an ulterior motive in an unexpected position. I think that decision may very well open the door to such partisan nonsense by both sides in the cloak of taxing power down the road that the Court will have to eventually have one those "The prior case was plain wrong" moments. It happens a couple times a century and we are due for one.

I don't see this case doing anything revolutionary with the tax power. It's just a tax credit for buying insurance. All the "mandate to buy broccoli" bull**** was just bull****. If the government wanted to give you a tax credit for buying broccoli, or to buy a house, they could've done that already. This is nothing new.

 

[sangha]

I have to wonder who, if anybody, really "butters the bread" of a Supreme Court Justice with a lifetime appointment.

Conservatives piss and moan about the tax thing like it was judicial legerdemain, but if you were paying attention at all you know that it has been talked about as a tax since day one. It is what it is, a tax. If you look at it objectively (instead of looking at it from a point of view that has been hopelessly clouded by partisan rage) that is what you see.

The fact is that this is not crony capitalism on Roberts's part. Were he a crony capitalist he would have ruled against it, which is the right-wing (including the insurance lobby) wanted, and what the rest of the right-wing cronies on the court did. Voting in favor was for the left-wing cronies. What's remarkable about this is that Roberts went against his ideology and made the right decision, like a real judge.

Umm, Justice Roberts did not call it a tax. It seems that some who think its wrong to change the meaning of words through interpretation are doing just that

 

[Thoreau72]

I have to wonder who, if anybody, really "butters the bread" of a Supreme Court Justice with a lifetime appointment.

Conservatives piss and moan about the tax thing like it was judicial legerdemain, but if you were paying attention at all you know that it has been talked about as a tax since day one. It is what it is, a tax. If you look at it objectively (instead of looking at it from a point of view that has been hopelessly clouded by partisan rage) that is what you see.

The fact is that this is not crony capitalism on Roberts's part. Were he a crony capitalist he would have ruled against it, which is the right-wing (including the insurance lobby) wanted, and what the rest of the right-wing cronies on the court did. Voting in favor was for the left-wing cronies. What's remarkable about this is that Roberts went against his ideology and made the right decision, like a real judge.

That's a good point--who really does butter the bread of court members? I think last year Justice Thomas' statements on his income tax forms regarding certain remuneration or affiliation, somehow related to his wife as I recall, shown a bit o' light on the subject.

And I think Scalia has been the beneficiary of the largesse of several 'right wing think tanks' for lack of a better term, while staying in Palm Springs and Aspen attending various events.

Does riding on corporate aircraft represent buttered bread?

I don't recall the word "tax" come up either in the congressional deliberations or the arguments before the Court, but maybe I missed it. It seems that Roberts introduced the term. He ruled in favor of the status quo, and for a bill that mandates a million or more new customers for the health insurance industry, and that's what makes him condone crony capitalism.

 

[Guy Incognito]

That's a good point--who really does butter the bread of court members? I think last year Justice Thomas' statements on his income tax forms regarding certain remuneration or affiliation, somehow related to his wife as I recall, shown a bit o' light on the subject.

And I think Scalia has been the beneficiary of the largesse of several 'right wing think tanks' for lack of a better term, while staying in Palm Springs and Aspen attending various events.

Does riding on corporate aircraft represent buttered bread?

I don't recall the word "tax" come up either in the congressional deliberations or the arguments before the Court, but maybe I missed it. It seems that Roberts introduced the term. He ruled in favor of the status quo, and for a bill that mandates a million or more new customers for the health insurance industry, and that's what makes him condone crony capitalism.

You just need to realize that you are all looking at this through a cloud of ignorance. What I mean when I say that it was treated as a tax from day one I mean that, anybody who is in the know can see right through the language of the bill to its function as a tax. It's not the court using sleight of hand here, it's the legislature. They don't want to call it a tax because voting for new taxes is unpopular, but the "mandate" has always walked like a tax and quacked like a tax. if and when you are able to overcome your ignorance and partisanship you will be able to see this too.

 

[sangha]

You just need to realize that you are all looking at this through a cloud of ignorance. What I mean when I say that it was treated as a tax from day one I mean that, anybody who is in the know can see right through the language of the bill to its function as a tax. It's not the court using sleight of hand here, it's the legislature. They don't want to call it a tax because voting for new taxes is unpopular, but the "mandate" has always walked like a tax and quacked like a tax. if and when you are able to overcome your ignorance and partisanship you will be able to see this too.

It is not a tax. Roberts did not call it a tax.

The only way one can believe that it was called a "tax" is by interpreting SCOTUS' decision in a way that changes its' meaning

 

[Thoreau72]

You just need to realize that you are all looking at this through a cloud of ignorance. What I mean when I say that it was treated as a tax from day one I mean that, anybody who is in the know can see right through the language of the bill to its function as a tax. It's not the court using sleight of hand here, it's the legislature. They don't want to call it a tax because voting for new taxes is unpopular, but the "mandate" has always walked like a tax and quacked like a tax. if and when you are able to overcome your ignorance and partisanship you will be able to see this too.

Well if it walked like a tax and quacked like a tax, why on earth did nobody call it a tax?

Further, from my ignorant position, this seems to fail the constitutional requirement regarding taxes. And if it is a tax, why will the money go to private insurance companies?

 

[GlenS]

When the court regularly makes 5-4 rulings that should tell us something. The Constitution is a simple written document, not hard to understand. The SCOTUS has rendered itself irrelevant when it consistently rules not by what the Constitution says but what the party in power wants.

 

[Guy Incognito]

When the court regularly makes 5-4 rulings that should tell us something. The Constitution is a simple written document, not hard to understand. The SCOTUS has rendered itself irrelevant when it consistently rules not by what the Constitution says but what the party in power wants.

On the contrary, the constiution is practically impenetrable to anybody who hasn't made an extensive study of history, which most lawyers and judges have not; and moreover it was in many ways deliberately left vague. It is unsurprising that interpretation of such an important document would split down ideological lines, as has been the case since the earliest days of the republic.

 

[Master PO]

When the court regularly makes 5-4 rulings that should tell us something. The Constitution is a simple written document, not hard to understand. The SCOTUS has rendered itself irrelevant when it consistently rules not by what the Constitution says but what the party in power wants.

i find the constitution not hard to understand, if you read the federalist papers, however the federalist papers are a very hard read, but once you understand what they are saying, the constitution comes into clear view.

 

[Thoreau72]

On the contrary, the constiution is practically impenetrable to anybody who hasn't made an extensive study of history, which most lawyers and judges have not; and moreover it was in many ways deliberately left vague. It is unsurprising that interpretation of such an important document would split down ideological lines, as has been the case since the earliest days of the republic.

I do not find the Constitution that difficult to understand, even though it was written 200 years before I was born. The language has not changed that much. The principles involved--limited government and the supremacy of individual rights--are quite simple.

What ideological lines do you see back in 1787?

 

[Guy Incognito]

I do not find the Constitution that difficult to understand, even though it was written 200 years before I was born. The language has not changed that much. The principles involved--limited government and the supremacy of individual rights--are quite simple.

What ideological lines do you see back in 1787?

You don't even realize that you are misunderstanding. The second amendment is a perfect example of this: the phrase keep and bear arms was a legal term of art, like hue and cry, that had a specialized meaning referring to martial service. The first amendment was likewise quite a bit different than people commonly understand it today, speech referring only to political speech, for instance. Laws against blasphemous speech were perfectly ok.

The fact is, you couldn't be more wrong thinking it's easy or straightforward for a modern mind to read and understand the original intent of the constitution. It is also irrelevant since we don't use original intent to determine what the constiution means, we look to the supreme court.

The ideological lines of 1787 were drawn primarily between those who wanted a strong federal government and those who didn't.

 

[Thoreau72]

You don't even realize that you are misunderstanding. The second amendment is a perfect example of this: the phrase keep and bear arms was a legal term of art, like hue and cry, that had a specialized meaning referring to martial service. The first amendment was likewise quite a bit different than people commonly understand it today, speech referring only to political speech, for instance. Laws against blasphemous speech were perfectly ok.

The fact is, you couldn't be more wrong thinking it's easy or straightforward for a modern mind to read and understand the original intent of the constitution. It is also irrelevant since we don't use original intent to determine what the constiution means, we look to the supreme court.

The ideological lines of 1787 were drawn primarily between those who wanted a strong federal government and those who didn't.

Understood. Thus the Federalist Papers. I guess some wanted to stay under British rule, but they all had to move to Canada, eh?

Where does it say that laws against blasphemous speech are OK?

No, I don't buy into that High Priest stuff. As though one can only understand English if one wears a Black Robe or some other silly nonsense. I understand and respect that there are special terms and concepts as a part of the practice of law, things to be learned in law school, but the language used in the document was English, not Pig Latin or some other obscure language.

 

[sangha]

Understood. Thus the Federalist Papers. I guess some wanted to stay under British rule, but they all had to move to Canada, eh?

Where does it say that laws against blasphemous speech are OK?

No, I don't buy into that High Priest stuff. As though one can only understand English if one wears a Black Robe or some other silly nonsense. I understand and respect that there are special terms and concepts as a part of the practice of law, things to be learned in law school, but the language used in the document was English, not Pig Latin or some other obscure language.

Actually, the Federalist Papers support Guys' side of the argument as it often presents conflicting interpretations of the constitution

 

[Thoreau72]

It was my understanding the the Federalist Papers' purpose was to debate both sides of the various issues raised by the proposed constitution. Though it mostly defended and advocated for the new document, it meant to present both sides.

It is true that language can go only so far, and that subsequent interpretation of the law is always necessary as specific cases arise.

Is Guy's position that only school trained lawyers can understand the language of the document, or that it's OK to pass laws against blasphemous language? It is OK to pass laws against speaking ill of somebody, especially God?

Is it true that only lawyers can understand or interpret legal documents?

 

[Fisher]

It was my understanding the the Federalist Papers' purpose was to debate both sides of the various issues raised by the proposed constitution. Though it mostly defended and advocated for the new document, it meant to present both sides.

It is true that language can go only so far, and that subsequent interpretation of the law is always necessary as specific cases arise.

Is Guy's position that only school trained lawyers can understand the language of the document, or that it's OK to pass laws against blasphemous language? It is OK to pass laws against speaking ill of somebody, especially God?

Is it true that only lawyers can understand or interpret legal documents?

Of course not--that is why there is Legal Zoom (just kidding)

By my measure the two inherent flaws in relying only on the 4 corners of the Constitution and the federalist papers are that it takes them out of societal context. I am in the minority, but I do not believe that the Constitution can be interpreted but in the light of the Declaration of Independence and English common law traditions.
(something that makes the hard-core strict constructionists gag).