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Author	Topic: The Nature of the American Constitution. Revised for your Comfort.
Kimball_Kinnison Registered: Oct '01	Date Posted: 10/15/05 6:31pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DARTH-SHREDDER posted: You don't understand my point. My point is that it shouldn't be in the same catagory as police and firemen, because those issues deal with the individual state and its people. But marriage is simply a human rights issue. Do you think some states should outlaw killing and others make it legal? No, because that has nothing to do with the state's individual people, it's something that needs one solution. If marriage was a state issue, then different states would have different types of marriage, which should be, as marriage should be the same for all citizens. It's not like New York's citizens would need gay marriage and Geogia's citizen's wouldn't. Simply, individual states make individual laws because different states have different needs, but all citizens should are the same when it comes to marriage and their needs. And you are completely missing my point. If the Constitution does not currently give authority in some area to the federal government, then there is a means to give that authority to the federal government: found in Article V: Amendment. When the federal government lacked the authority to impose an income tax, and the People were convinced that they needed to give that authority to the government, what happened? They passed the 16th Amendment to grant that power to the government. When the People decided that thegovernment should have authority to ban alcohol in the US, what did they do? They passed an amendment. When they decided that the government didn't need that authority, what did they do? They passed another amendment. As things stand right now, the US Constitution does not give any authority whatsoever to the federal government to dictate in matters of marriage*. If you feel that the federal government should have that authority, then there is a proper manner to give it that authority: by amendment. Otherwise, you simply have the government usurping authority that rightfully belongs to the People. If you permit the government doing that in this case, what basis do you really have for keeping it from usurping other powers? I was recently given a power of attorney for my parents, so that I could finish the transaction in selling their house after they moved. I was given complete authority in all legal matters relating to the sale of that specific property. If I were to take that power of attorney and try to use it to direct any of their other legal affairs (such as changing their wills, selling any other property, etc), it would be completely invalid, and I could face serious legal charges for fraud (and related offenses). Since they moved, they have had some problems with their bank here and the DMV, because of a lein being reported on their car. If they want me to be able to handle the matter, they would have to give me a new power of attorney. My old one would not permit me to conduct any business with the bank in their name relating to their car. The Constitution is the same way. It is a power of attorney that gives the government certain powers in specific areas of responsibility. If the government lacks powers, then it can't simply claim them on the basis of the previous power of attorney. It needs an addition power of attorney granting those additional powers. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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DARTH-SHREDDER Registered: May '05	Date Posted: 10/15/05 6:41pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	There are gradualists and fundamentalists when it comes to the constitution. Gradualists believe you should look at what has happened since the last ammendment to the constitution. They believe you can make change even before an ammendment is put in place to make it official. I am a gradualist. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/15/05 7:49pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DARTH-SHREDDER posted: There are gradualists and fundamentalists when it comes to the constitution. Gradualists believe you should look at what has happened since the last ammendment to the constitution. They believe you can make change even before an ammendment is put in place to make it official. I am a gradualist. If you can change the Constitution without amending it, then the document is meaningless. Can you name me any other legal document where it is acceptable to change the meaning of the document without changing the document itself? Can you change the meaning of a signed contract without writing an addendum? How about a power of attorney? A will? You can say you are a gradualist all you want, but the Constitution makes no provision for changing the document, except through amendment. "Gradualism" couldn't end slavery or prohibition, and it couldn't give women universal suffrage. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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DARTH-SHREDDER Registered: May '05	Date Posted: 10/15/05 9:17pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/15/05 9:17pm (1 edits total) Edited By: DARTH-SHREDDER
	Kimball, you say the federal government doesn have any powers that aren't granted to it by the people, or already in the constituion. But when new things come up, the federal governement does act on them and make federal laws against them. Like the environment for example. The government has made plenty of laws restricting what people do to the environement. But the constitution doesn't talk about the evironment at all. So then how could the federal governement restrcit pollution. The constitution doesn't grant it that power. So I guess the government couldn't have done that. Even thought they did. And nobody said they were out of place. I mean the government makes tons of federal laws all the time, and you say the only ones they are allowed to make are the ones granted in the constitution? That's a very small amount, not to mention we don't have an ammendment for all federal laws made. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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IkritMan Registered: Sep '02	Date Posted: 10/16/05 7:50am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: I see. So that means that the police have no authority to arrest protesters in Washington D.C. who are not protesting in accordance with relevant law? The Constitution says that Congress shall make no law abridging the right of the people to peacably assemble, and that is what the law regarding said right relates to. Obi-Wan McCartney posted: So you admit there are ambiguities in the law that must be determined by judges. That's good. There is nothing to admit; there are occasions where the Constitution calls for interpretion. The difference between objectivity and liberal activism is that the latter mindset takes "interpretation" as an excuse to write law whether or not the Constitution is explicit, ambiguous, or silent. Obi-Wan McCartney posted: But judges write legal standards for following the law, they always have, they always live, no matter how conservative an originalist you have on the courts. Judges craft these 3 prong standards all the time, or other kinds of legal standards to fill in the gaps in existing laws. So if people murdered all the time, homicide would be an OK thing to do? I'm not sure I follow your reasoning. Repitition of an action does not make it moral or legal. Should we consider human rights violations in Sudan ethical considering they have taken place for such a long time and have established precedent? Should we consider environmental pollution as established precedent? Obi-Wan McCartney posted: Again, you go too far. No one believes the judiciary has absolute power. Everyone believes the judiciary has absolute power until she holds the judiciary to an objective standard. Obi-Wan McCartney posted: Yes it can, within the text of the 1st, 4th, 5th, and 9th amendments. I've already shown that the ninth amendment does not apply, but I will demonstrate for you how your theory of amendments fusing into super-amendments reminiscent of old power rangers episodes is fallacious: Where in the 1st, 4th, or 5th amendments does the Constitution protect sodomy? No where? I do not believe you could even form a sentence using words from the 1st, 4th, and 5th amendments to make a clause protecting sodomy. The only way for the Constitution to protect sodomy is for a judge to form his own personal clauses and put them into the Constitution. Obi-Wan McCartney posted: Exactly my point, but the judges still crafted new law in this case by making this a requirement. A requirement that has no Constitutional basis, therefore writing law. You said it yourself: the judges wrote law. They didn't apply any principles of the Constitution: they forced their personal values and opinions, which are expressed by everyone else at the voting booth, on the nation. Obi-Wan McCartney posted: They interpreted the amendments, and determined that there was an impied right that a person be informed of these rights before being subject to custodial interrogation. Haha! You went from "crafted new law" to infered from the Constitution. [face_laughing] Obi-Wan McCartney posted: In this case, the judges DID invent law, and rightly so, it was within their power. And who gave them this power? I was under the impression that the Constitution gave all lawmaking power to Congress: The Constitution, Article I, Section 1 posted: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. I think the Constitution implies that the Congress is supposed to have all legislative power, wouldn't you agree? Isn't it also dangerous that an unbalanced, non-objective court grant themselves power by reading vestments of power to themselves into the Constitution? [quote=Obi-Wan McCartney]How can you post such a thing when you yourself brought up the example of the cruel and unusual punishment?[/quote] Because the example of cruel and unusual punishment actually needs interpretation. Since when do we "need" to interpret that the Constitution grants the Supreme Court power to make law? That the Constitution "implies" a right to privacy but no right to property? [quote=Obi-Wan McCartney]Exactly my point, why then did you take exception to the fact that I said SOME interpretation of the constitution is required?[/quote] Because when you said "some," you presented examples where the Constitution explicitly explains itself with no interpretation needed. [quote=Iman]The Constitution, Article I, Section 1 posted: -------------------------------------------------------------------------------- All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. --------------------------------------------------------------------------------[/quote] [quote=Obi-Wan McCartney]The judiciary was based on the English system of common-law, its the same system we have today, and then, just as now, just as tomorrow, common-law = judge made law, which means judges have rulemaking powers, they can write new law.[/quote] The hoops through which you have to jump in order to come to that conclusion are comical. The fact that the judiciary was based on another system doesn't mean that it is that other system. Perhaps, that is what it has unconstitutionally become, but to claim that the Constitution gives the judiciary power to make law because it borrowed other elements from another system is preposterous. If they wanted the judiciary to make law in addition to having other powers based on that other system, they would have said so. Insted, they chose to leave that out of the Constitution. Now, why would they do that? [quote=Obi-Wan McCartney]Again, you are quite simply not aware or not informed about our system of jurisprudence.[/quote] No, I am aware and informed of our system, which is why I have the capacity to criticize it. You as well are informed about out system of jurisprudence. The difference between us is that you are not aware or informed of the Constitution. [quote=Obi-Wan McCartney]The legislature is beholden to public at large, but sometimes the majority may want to do things that are unconstitutional. It is up to the Judciiary to serve as a check.[/quote] Exactly, and they are to serve as a check regarding various areas of our liberties, which are to be guided by the Constitution. Currently, the judiciary is not serving as a check on the majority but as a vehicle for a political agenda. [quote=Obi-Wan McCartney]But judges must decide cases based on the laws and the constitution.[/quote] Not anymore. [quote=Obi-Wan McCartney]Try and understand the difference.[/quote] I will try to (corrected) understand the difference. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/16/05 8:32am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/16/05 9:05am (3 edits total) Edited By: Obi-Wan McCartney
	Iman, judges make law through their decisions. It's called precedent. Is it really that hard for you to understand? Judges have been making law since before the formation of the United States, and they continued to do so afterwards. You are not properly informed on this issue OR the constitution. Please understand, I believe your interpretation of the constitution is valid. A narrow reading is a valid way to interpret the constitution. You are correct or at least you have a valid argument in claiming the constitution doesn't gauruntee the right to privacy, or protect sodomy. You are correct that judges are not to inject personal morality or to legislate from the bench. What you don't understand is the function of the judiciary at a most basic fundamental level. Read this from answers.com: Common Law We don't need to be having THIS argument. We can be arguing about the proper way to interpret the constitution, about whether Judges are improperly injecting their own personal morality, whether the legal concept of the right of privacy is a true right or a legal fiction. Do you really think that every single federal and state appellate judge in the history of the union has been improperly writing law for the last 200 years? Every single one? Come on man, you present cogent arguments, you have a pretty good grasp on constitutional issues and legal concepts, why is this one so difficult for you? I mean, they even refer to the system of common law in the Constitution: 7th Amendment posted: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. What's comical is that you are trying to claim that our legal system isn't a common law system. It isn't a PURE common law system, but 49 of the fifty states have judge-made law, as does the federal judiciary. Again, this has been true since the foundation of the United States. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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IkritMan Registered: Sep '02	Date Posted: 10/17/05 6:47am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I never argued that they couldn't establish precedent, as lower courts follow the decisions of superior courts, but you said numerous times that they could write law, which is the same as legislation, which was given to Congress only. You were also using the system of common law as an excuse for judges to sidestep the Constitution and rule as a solely law-making body. My point was that the our system may be based on a common-law system, but it isn't a total common law system. The Constitution doesn't declare that all "precedent" be followed for the rest of eternity, for it is obvious that cases can be decided in error, either intentionally or unintentionally. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/17/05 7:48am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	The judges DO write law, because their decisions are legally binding. It isn't exactly the same as legislation, but sometimes it still has the same practical effect. It affects citizens. Decisions that the Supreme Court makes affect every manner of life, from civil cases to police stops of the average citizen. The Supreme Court and lower courts write the restrictions on free speech, they have to decide time place and manner restrictions and the proper application of the written law, which affects the reality of the law itself. However, common law is more fluid than written law, it is meant to shift. Now, the judiciary, despite conservative claims to the contrary, IS deferential to the legislature. When you read most of the cases dealing with new judge made law, they are exteremly deferential to the legislature. Many times, they will make decisions, but will acknowledge that the legislature can change the practical outcome of their judge-made law by passing legislature. This has happened many times. Courts will make a decision, and the legislature will pass a law essentially nullifying the legal effect of that decision. Sometimes, however, Congress passes unconstitutional laws, and so the Supreme Court decided it had the power to strike down such laws. This is questionable, but it is the way it has worked for 200 years. This is a good thing, because otherwise there would be no practical check on a powerful Congress. As Kimball Kinneson points out, the constitution sets up our government, and one of the most important functions is the balance of power, the divided government. This was the MOST important part for founders like Madison, who believed it would be enough to ensure liberty and that the Bill of Rights might be detrimental because people like many of the constructionists on the board would think that the constitution is limited to those rights enumerated. The President is kept in check by Congress AND the Supreme Court, (Jefferson, Nixon, Clinton all found that out, among others), the Supreme Court is kept in check by the President who picks the court, and by Congress who confirms them, and by the power of Congress to strip the federal courts of jurisdiction. It only makes sense that Congress should be kept in check both by the President (and his veto power) AND the Supreme Court. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/17/05 9:39am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: The President is kept in check by Congress AND the Supreme Court, (Jefferson, Nixon, Clinton all found that out, among others), the Supreme Court is kept in check by the President who picks the court, and by Congress who confirms them, and by the power of Congress to strip the federal courts of jurisdiction. But what, for example, would keep the Supreme Court from ruling that stipping a federal court of jurisdiction is unconstitutional? I know it is a power explicitly given to the Congress, but what is to stop the Judiciary from "reinterpreting" it with some "three-pronged test" to neuter that power? That is the problem with saying that the meaning of the Constitution can change over time, and with allowing the Judiciary almost complete authority to decide what it does or does not mean. The Judiciary is the branch least accountable to the People, and the one that (under your philosophy, at least) has the most power to change the Constitution. What checks are there to block the Supreme Court from usurping power in that sort of manner? Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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Jediflyer Registered: Dec '01	Date Posted: 10/17/05 10:02am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Well, I'm not saying I advocate the Constitution changing over time, but there are two checks that immediately come to mind KK: 1) Constitutional Amendments to clarify certain issues (i.e. what is going on with the Gay Marriage Ammendment) 2) Andrew Jackson's "John Marshall has made his decision, now let him enforce it" philosophy. -----signature----- As long as the differences and diversities of mankind exist, democracy must allow for compromise, for accommodation, and for the recognition of differences. -Eugene McCarthy There are no dialogues, only intersecting monologues -Mark Twain
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/17/05 10:30am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Kimball, what's to stop the President from declaring total Marshall law, and sending the U.S. Army to take control of the country, kill all Senators and Congressman, demanding blood oath loyalty from all Governors, and creating the grand Empire of America? I mean, he has actual military power, the Supreme Court is listned to be cause the President enforces their decisions. Come on now. You're talking crazy. The Supreme Court has been blocked by Congress before, and they have respected the law. If a Supreme Court got out of control, Congress can impeach them. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/17/05 10:51am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Kimball, what's to stop the President from declaring total Marshall law, and sending the U.S. Army to take control of the country, kill all Senators and Congressman, demanding blood oath loyalty from all Governors, and creating the grand Empire of America? I mean, he has actual military power, the Supreme Court is listned to be cause the President enforces their decisions. Come on now. You're talking crazy. The Supreme Court has been blocked by Congress before, and they have respected the law. If a Supreme Court got out of control, Congress can impeach them. If I'm "talking crazy", then why were there so many people (including you, as I recall) seriously talking about how the Supreme Court could rule stripping of jurisdiction unconstitutional (in cases like Gitmo or gay marraige)? If you want, I'll go back and find the specific posts. Jediflyer posted: Well, I'm not saying I advocate the Constitution changing over time, but there are two checks that immediately come to mind KK: 1) Constitutional Amendments to clarify certain issues (i.e. what is going on with the Gay Marriage Ammendment) 2) Andrew Jackson's "John Marshall has made his decision, now let him enforce it" philosophy. At the very least, 1) is no solution. If the Supreme Court gets to decide what the Constitution means, in the end, what good does it do to pass an amendment, which the Supreme Court can then "interpret" however it wants to? Even plain English gets twisted every which way in court rulings. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/17/05 11:53am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Kimball, please do, I'm curious as to what i said. These are nuclear options, they are almost never used and no one knows how it would play out. However, to answer your question, the balance of powers would keep the Supreme Court from doing something dasterdly. If they ruled that congressional stripping was unconstitutional, I don't know what would happen. It would depend on what Congress and the President were willing to do about it. But it would depend very much on the actual situation, the ruling, the letter of the law. It's hard to discuss such a possibility, in fact, I believe it's precisely why "what if" threads aren't allowed, because they are too speculative. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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ShaneP Title: Lucasfilm Projects Gremlin(Manager ) Registered: Mar '01	Date Posted: 10/17/05 1:16pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan However, to answer your question, the balance of powers would keep the Supreme Court from doing something dasterdly. Riiight. The balance of powers from that same document they've already tread upon for decades. -----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/17/05 1:47pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Come on, be reasonable. No system is perfect. Every system has excesses and flaws. However, the basic idea is to promote stability and have conflict through intellectual, or at least peaceful, discourse. What you call treading on, I call, for the most part, upholding. I have read so many Supreme Court cases, and there were so many times I thought they came to the wrong conclusion, but everyone has their own opinion, we have a system that tries to be as fair as possible to all involved. I feel like there are one or two MORAL issues that seem to get everyone up in arms. Other than the right to Privacy, what is everyone so upset about? Seriously? What are the major greviences with the Supreme Court, other than the right-wing battle to pack the court with right wingers? Again, how is it so many conservative justices just "turned liberal" when they got on the court? Isn't it possibel they didn't just "turn liberal," but rather used reason and logic to come to what they felt was the correct legal conclusion? -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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