Pardon My Ignorance

[cherrypoptart]

"If the constitution was not open to interpretation there would be no need of the SCOTUS."

It's one thing to interpret the Constitution but it's another thing entirely to do what the liberal justices do constantly which is to rewrite it from the bench, for instance on gay marriage and Obamacare and what they tried to do in the Heller decision.

[NobleHunter]

There's a problem with your set up. "The text is static" and "the meaning is static" are two vastly different statements that don't really belong in the same sentence. The former is tautological. If it's not static it's not a text (it's several texts or something). The latter is as false as the other is true. Meaning, at least when expressed by imprecise language, is never static and changes from person to person. This is especially true over time since texts are written in a specific context with the expectation of a specific audience. You can't say "I'm reading this text as it was written" because you aren't the person who wrote it. One may certainly attempt to do but that attempt can introduce the very uncertainty the reader is trying to avoid. You don't get a PhD in history just so you can read the handwriting.

For example, the clauses relating to the regulation of international and interstate commerce. The text is the same. It hasn't been amended or re-written or whatever. The meaning is different. What was once a way to limit the Federal government's ability to muck about with local, day-to-day commerce is now a license to meddle with essentially everything down to your morning coffee. But the words are the same.

Regulation of commerce is probably best straightened out by Amendment (again, good luck with that) but smaller nuances aren't. Somebody's got to them out and if not the SCOTUS, then who?

[Seriati]

That was sloppy of me NobleHunter, I meant that they don't believe the meaning of the text or the meaning of the Constitution are static, but really I'm implying that they go beyond simply not believing its static to believing that it means whatever they need it to mean at a point in time (and occasionally they treat it as if it means what it use to mean if that's convenient).  It's a simple concept.  Without predictability, we DO NOT LIVE under law, we live under judicial whim.  The fact is, if the Justices are predictable and wrong we can correct their error, if however they are unpredictable, capricious and ignore the law, there's NO WAY to fix the situation.

I agree with you on interstate commerce, I've written on it multiple times on this board.  The case about the corn farmer (name escapes me, might be Wickard) goes down in my book as the most egregious example of judge made law breaking the system.  I want to see MUCH less of that, which unfortunately is not what we'll see with five liberal Justices.

[Seriati]

I mean seriously, I've never once seen someone make an actual argument that they want more liberal Justices because they think they'll enforce the law or the Rule of Law.  Every single last argument in their favor is outcome oriented.  That should scare you regardless of where you are on the political spectrum, well unless of course you're a latent Monarchist I suppose.

[NobleHunter]

Asimov's foundation series argued that benign imperialism was the best form of government. I read enough David Weber that I'm a sucker for a fictionally well-run monarchy.

I haven't done the legwork to agree or not on the unpredictability of certain approaches to jurisprudence. Though on a person-by-person basis, they seem quite predictable, except for the swing voters. That's too narrow a timeframe though. Though is it even possible for a court to be predictable over the long term?

I tend to side-eye the Law as an abstract principle. To mangle Kant: Law should never be treated as an end in itself but instead regarded merely as means. The point of the law is outcomes: justice or safety or clarity or resolution or even prosperity. One approach is to argue that it is not the role of the SCOTUS to enforce law but to judge the validity of laws based on how they adhere to the outcomes implied by the Constitution. What those outcomes are, I leave as a exercise to the reader :p

[scifibum]

I mean seriously, I've never once seen someone make an actual argument that they want more liberal Justices because they think they'll enforce the law or the Rule of Law.  Every single last argument in their favor is outcome oriented.  That should scare you regardless of where you are on the political spectrum, well unless of course you're a latent Monarchist I suppose.

You've defined Rule Of Law to mean a conservative interpretation, so what you're saying here is a bit circular.  Conservative = Rule of Law = Better. 

We'd have to roll the clock back quite a long way to make this definition of rule of law comport with the de facto rule of law.

[Seriati]

You've defined Rule Of Law to mean a conservative interpretation, so what you're saying here is a bit circular.  Conservative = Rule of Law = Better.

Not really, I'm fine with Dictionary.com's definition, for example, "the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law."   

Other formulations are even clearer, and really it's simple concept, rule by law, not by men.  This concept of the law is whatever 5 Justices say it is, is a throwback to being ruled by divine interpretation.  Capriciousness of enforcement is second only to corruption as contrary to the Rule of law.  In my view Hillary represents both.

I'd like to point out as well, that our "conservative court" has been in place for years, and we still have abortion rights (notwithstanding this being the issue for religious conservatives), we've had judicial imposition of gay marriage and the evisceration of DOMA, we had a Bush appointee cast the deciding vote to save Obamacare.  This is NOT a court that has imposed its personal views in contradiction to what they believe the law says.

[AI Wessex]

Please provide the citation to the Constitutional provision that provides for the SC to be the final arbiter of the Constitutionality of law.  Please cite to anything in federal statutes or the Constitution that supports your interpretation.

Is Marbury v Madison not sufficient for you?

I mean seriously, I've never once seen someone make an actual argument that they want more liberal Justices because they think they'll enforce the law or the Rule of Law.

The SC is the final arbiter of the Constitution, because of its role in judicial review.  Justice Hughes wrote:

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.

Do you disagree?

I'd like to point out as well, that our "conservative court" has been in place for years, and we still have abortion rights (notwithstanding this being the issue for religious conservatives), we've had judicial imposition of gay marriage and the evisceration of DOMA, we had a Bush appointee cast the deciding vote to save Obamacare.  This is NOT a court that has imposed its personal views in contradiction to what they believe the law says.

You don't believe that a 6-3 Conservative court wouldn't overturn every one of those things if they had the chance?

[Seriati]

Please provide the citation to the Constitutional provision that provides for the SC to be the final arbiter of the Constitutionality of law.  Please cite to anything in federal statutes or the Constitution that supports your interpretation.

Is Marbury v Madison not sufficient for you?

Exactly, the SC is the final arbiter, because wait for it....   the SC says it should be.  As a matter of politics, the Legislature and the Executive have found it expedient to leave that status alone for most of our history. 

Do I disagree that it is convenient, of course not.  And for so long as the court focuses on interpreting the law in good faith, rather than in naked political decisions it has been a good thing on balance.  It can't survive what's been a deliberate strategy of the left to focus on the appointment of judges and justices as a way to effect social changes that don't have popular support.

You don't believe that a 6-3 Conservative court wouldn't overturn every one of those things if they had the chance?

Beats me, what I am certain of is that the Republicans haven't had a 60 vote majority in the Senate in over 100 years so there's no chance (at least before Harry Reid changed the rules during a temper tantrum) that they could appoint someone who would vote "conservative" without regard to the law.  I'm less interested in 6 conservative judicial activists than I am in 6 liberal ones.  At the moment, Alito is the only one who may fit that bill, so you'd need quite the turnover to get there.

[Pete at Home]

AI Wessex creates a false dichotomy where either SCOTUS has a blank check to make anything up and say that's what the constitution means (as occurred with Gender Neutral Marriage and Medical Marijuana), or we have to be originalists like Scalia pretended to be (and sometimes actually was).  To put it into common parlance, Al is telling us that the only choices are legal fundamentalism and legal nihilism. 

But contrary to Al's assumption, Originalism and Postlegal fatwaism are not the only schools of legal "interpretation," and in fact were not even significant schools of interpretation until very recently. 

Neither I nor Seriati are Scalian Originalists or Stephensian Postlegalists, and yet we still disagree with each other on certain issues of constitutional interpretation. I do think the Constitution implies that SCOTUS does have final say as far legal interpretation of certain (but not all) issues.  But even that final interpretation is subject to the rotation of SCOTUS members and alteration of their opinions over time, to constitutional amendment, and to three other highly controversial (but entirely constitutional) means:

1. A Supreme Court Justice may be impeached.  Impeachment is one constitutional procedure in which the Supreme Court does NOT have the last say, and even where Congress holds the unchecked power of constitutional interpretation.  I believe that Postlegal treatment of the constitution, to the extent that it encroaches in legislative prerogative suffices for "High Crimes and Misdemeanors."  And as Congress found in the Andrew Johnson impeachment, encroachment on legislative powers is a matter meet for an impeachment proceeding.  (Note that Johnson was acquitted in his impeachment, but that's a matter of fact, not of law.

2. Congress may allow the President to expand the number of Justices on the Supreme Court, effectively "packing" the court.  This happened many times during the first century of the Republic, but hasn't happened for over 120 years, IIRC.

3. The president and/or Congress can simply threaten #1 or #2, as FDR did when he faced a court packed with reactionary postlegalists who were constantly pulling "constitutional" protections out of their asses for megacorporations.  (For example, that the "Constitution" prohibited Congress nor the States had the power to pass laws prohibiting working a 10 year old 12 hours a day in a coal mine, etc).

While most legal historians today exoriate FDR for #3, they are IMO full of sanctimonious baloney.  I suspect Seriati will disagree with me on that. 

I agree with Seriati that the Court has a duty to interpret the Constitution in good faith, and that when it fails in that duty, as it did in Raisch and in Dredd Scott and other cases, the people have a first amendment rights to petition government for redress of grievances.  I think, but doubt Seriati will agree, that the government's remedy for SCOTUS bad faith includes the tools in my options 1,2, and 3 above.

[Seriati]

3. The president and/or Congress can simply threaten #1 or #2, as FDR did when he faced a court packed with reactionary postlegalists who were constantly pulling "constitutional" protections out of their asses for megacorporations.  (For example, that the "Constitution" prohibited Congress nor the States had the power to pass laws prohibiting working a 10 year old 12 hours a day in a coal mine, etc).

While most legal historians today exoriate FDR for #3, they are IMO full of sanctimonious baloney.  I suspect Seriati will disagree with me on that.

Hard to say without reference to specific historians, but generally they are full of baloney.  From my point of view, the most unfortunate result of FDR's actions was leaving the court without the moral authority to prevent or at least heavily restrict the creation of administrative agencies that violate the separation of powers.  That's left us with an end result, where administrative agencies make more laws than Congress, where Congress can't often overrule them, and where the same agencies enforce those rules and force you into their own courts where the judges have a vested interest in the result.  A triumph of Bureaucracy over rights.

I agree with Seriati that the Court has a duty to interpret the Constitution in good faith, and that when it fails in that duty, as it did in Raisch and in Dredd Scott and other cases, the people have a first amendment rights to petition government for redress of grievances.  I think, but doubt Seriati will agree, that the government's remedy for SCOTUS bad faith includes the tools in my options 1,2, and 3 above.

I don't know why I'd disagree that it includes those 3 tools.  In my view impeachment is underused, particularly in the case of judges who make law rather than interpret it.  Of course there are other tools as well, one I always thought would be particularly fun is to repeal the Judiciary Act and start over.

[cherrypoptart]

"I don't get is how so many who attack her for lying and misleading the public completely ignore the same traits in Trump."

Because those factors are irrelevant in the grand scheme of things. For liberals Hillary will defend abortion which alone is enough to vote for her but most importantly she will amnestize all illegals while flooding America with millions more who get immediately amnestization with voting rights along with refugees which will ensure by simple demographics that the Republicans will never again hold any significant political power. Ever.

That will cause an immediate spike in Democrat voters so the Democrats will win the next election too and they will just repeat the same process of flooding America with millions more Democrats every single year.  Republicans will then lose on EVERY issue. Permanently.

We know that's what Hillary will do. She already promised it.

Trump says he will do the exact opposite.

So the only hope is Trump.

Simple as that.

[AI Wessex]

Simple as that.

There is a saying that explanations should be as simple as possible, but not moreso.  You have stepped so far over that line that I have no hope you can find your way back.

[AI Wessex]

Exactly, the SC is the final arbiter, because wait for it....   the SC says it should be.

Does 200+ years of precedent matter?

Do I disagree that it is convenient, of course not.  And for so long as the court focuses on interpreting the law in good faith, rather than in naked political decisions it has been a good thing on balance. 

Who decides if that is or isn't what they are doing?

It can't survive what's been a deliberate strategy of the left to focus on the appointment of judges and justices as a way to effect social changes that don't have popular support.

Is it only "the left" that does that?  If you believe that the SC is not the "final arbiter of the Constitution", is the Congress?  In other words, if Congress passes a law is it therefore Constitutional?

[TheDeamon]

Care to Explain the Trail of Tears? As the final arbiter, it never should have happened and a certain Democratic President that is celebrated as the basis for their iconography would have been impeached.

[AI Wessex]

I have no expert knowledge of how that was done, but checking Wikipedia for a condensed story the Cherokee challenged Jackson's policy and prevailed in the SC.  Jackson managed to skirt the ruling and imposed his policy anyway.  Why are you bringing this up?  FWIW, I don't believe the SC is perfect (Dred Scott, ...) and don't mean to imply that just because the SC makes a ruling that is always correct.  That doesn't mean every time one of their rulings is overturned it was really wrong, either.  That's why it's a living document.

[AI Wessex]

Seriati, I'm genuinely interested in your answer to this question:

If you believe that the SC is not the "final arbiter of the Constitution", is the Congress?  In other words, if Congress passes a law is it therefore Constitutional?

[Seriati]

It can't survive what's been a deliberate strategy of the left to focus on the appointment of judges and justices as a way to effect social changes that don't have popular support.

Is it only "the left" that does that?

No.  But it is a deliberate strategy of the left, and seems to find acceptance as a legitimate strategy among the rank and file on the left in a way that it does not on the right. 

If you believe that the SC is not the "final arbiter of the Constitution", is the Congress?  In other words, if Congress passes a law is it therefore Constitutional?

You've expressed a great interest in me defending your strawman argument here.  Not sure why.  Go back and read what I wrote, I never expressed a belief about whether or not the SC is the final arbiter of the Constitution, that's honestly not a question that "belief" enters into, it's a simple question of fact.  In the ordinary course, the SC will be the final arbiter.  In extraordinary circumstances there's a larger number of things that could impact the analysis, including everything Pete mentioned, but specifically the unlimited power of Congress to impeach and remove Justices should they so choose to act, and ultimately of the people themselves, should they choose to act to amend the Constitution.

My original point, that seems to have you confused, was that the SC's veto doesn't appear in the Constitution, nor was it clearly intended to exist (though as Pete noted [someone] could make the case).  There's nothing inherently good or natural about granting 5 people the power to overrule the express will of an entire country, and if it stops being a convenient way to resolve disputes where politics gets in the way of our best interests by becoming just another political decision then it'll have to be opposed as the tyranny it is.

Exactly, the SC is the final arbiter, because wait for it....   the SC says it should be.

Does 200+ years of precedent matter?

Do you think it's responsive to what I said, to point out that the SC has been saying it has the authority for 200+ years?

As a matter of fact, precedent matters a great deal.  But the 200 year precedent of the court has been to try and rise against partisan politics, to prevent judge made law and to act as a brake on the speed of change.  If you really cared about precedent, other than as a momentary argument position, your whole position of using the court to implement social change falls apart.

Do I disagree that it is convenient, of course not.  And for so long as the court focuses on interpreting the law in good faith, rather than in naked political decisions it has been a good thing on balance. 

Who decides if that is or isn't what they are doing?

You live in an enlightened era where every citizen is charged with understanding their government and using their votes intelligently.  You also live in the era of propaganda where the average citizen is persuaded to vote even against their own interests by pretty words and confusing ideology.  What that means here, is that we all get to decide if that is or is not what they are doing, but if you'd don't even understand the theory involved, all you're doing is voting in favor of what those manipulating you want.

[AI Wessex]

Go back and read what I wrote, I never expressed a belief about whether or not the SC is the final arbiter of the Constitution

So, does what you wrote earlier not mean that the SC is *not* the final arbiter?  What else could it mean?

Exactly, the SC is the final arbiter, because wait for it....   the SC says it should be.

You *seem* to agree that the SC cannot be "overruled" by Congress, although Congress can impeach an SC judge.  You're drawing too fine a distinction between how things work in fact and the theory that it doesn't have to work that way.

[Seriati]

Asked and answered.  Please don't re-ask the same questions to which I've already responded.  If you're confused about something it would help if you could be specific about what you find confusing.

[Pete at Home]

    Exactly, the SC is the final arbiter, because wait for it....   the SC says it should be.

Does 200+ years of precedent matter?

It matters to those who actually understand the precedent and represent it correctly.  Over 200+ years of precedent, SCOTUS only presents itself as final (legal) arbiter of SOME issues of constitutional law.  Since I view constitutional law as a contract between the people and government, yes its use and meaning can be modified over time: if no one objects to new implementations over time, that becomes part of the agreement.  But that doesn't mean that we cannot say as people and historians that SCOTUS was wrong in Dredd Scott, both on the substance of what the Constitution meant, and also in the corrupt procedure that produced the decision.