Senate The Supreme Court

Discussion in 'Community' started by Ghost, Oct 9, 2011.

  1. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    If you object to the interpretive framework I provided, then provide another one and explain why it's better. I've asked you for that several times, and you haven't exactly given anything.

    As I've said repeatedly, originalism is derived from the purpose of a written law in the first place: fixing the meaning of the law so that it doesn't change on a whim. It provides clear standards (i.e. that which you can support with historical documentation) that set outer limits of how you can interpret any passage of the Constitution. It is by far the most objective framework for interpreting the Constitution (even if it still retains some subjectivity).

    If you reject originalism, then what is your framework for interpretation, and how does it provide any clear guidance on the limits set by the Constitution? How do you keep the interpretation from shifting on the whims of whoever is on the Court?

    You criticize me for not saying why you should accept my framework, but at least I've outlined a framework for interpretation. You haven't given anything to say what principles should be followed for interpreting the Constitution. Your entire position could be summed up as "I think the federal government should be able to do this, so I'll interpret things however I have to to let it happen".

    I've provided what you asked for (and if you don't believe me, I'll go back and quote exactly where I provided it). When are you going to provide something similar?

    Kimball Kinnison
  2. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    I've never claimed to have a fully developed theory of constitutional intrepretation. Nor, in particular do I need one. Recall that unlike yourself, I didn't make a positive claim about the ultimate legality of PPACA. Indeed, several times I've noted that I don't see it as a clear cut case, and expressed my interest in seeing the ultimate verdict of the Supreme Court. I can't really definitively prove my uncertainty to you. Nor did I claim that any one theory of constitutional analysis was the best available, as you repeatedly have. The only comment I'v e really made is that I don't think PPACA fits well into any previous examples.

    If you're suggesting that the only way one can ask a question or advance a criticism of a certain model is to have a completely articulated alternative, I'd just disagree with your logic. There's no reason that has to be true.

    Finally, though, a somewhat unrelated remark. You keep expressing bewilderment about how, absent strict constructionism, one would prevent judges from making arbitrary decisions. in doing so, you are ignoring pretty obvious factors. For instance, no matter what theory you use, the US operates under a common law system. Thus, previous rulings attain a status akin to law, and constrain future rulings. A number of other mechanisms (nomination & approval of federal judges, etc) serve as interpretation-independent safeguards as well.

    Ultimately, this discussion comes down to two radically different approaches. I would tend to think that the key to discuss the Supreme Court's treatment of PPACA would come down to a discussion of, among other things, PPACA. You, on the other hand, seem to have taken the approach that you should first demonstrate the primacy of originalism, and then as a corollary prove PPACA is illegal because it is incompatible with your originalist reading. You're welcome to choose any tact you want. When you asked me questions about the claims I actually made (eg how can healthcare be considered interstate etc), I provided support for my arguments. But you can't just demand that I make an argument in the same fashion you did, and then lambast me for failing to provide evidence for the assertions I never even made in the first place.




  3. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    KK, I admit that you have always presented a clear and compelling case for originalism. However, I think Jabba has a point in that you do tend to minimize the importance of the American common-law system of jurisprudence. That system is the actual mechanism that anchors or constitution in practice, whether you (or a particular judge) believes in originalism or not.

    That is why in the American legal system, when you want to know what the current state of law actually is on a constitutional issue, you have to look at the caselaw.
  4. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    I only have a few minutes, so I only have time to respond to this one post.
    The problem with this argument as applied to the individual mandate is that pretty much everyone agrees that the individual mandate is completely unprecedented. There is no existing case law, because it is already at the boundaries of existing caselaw. It isn't a case clarifying limits previously set by the Court, but a matter of arguing for an entirely new grant of power to Congress (the power to compel commerce).

    When you deal with something that is unprecedented in this manner, then the only source you can turn to is the Constitution itself, not the caselaw. It is a matter for direct constitutional interpretation, because that is the only source for where the actual limits are.

    Kimball Kinnison
  5. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    When I said that common-law was the anchor, I meant that in a true practical sense. The idea is that no ONE person gets to have the ultimate say in what the law is. Our jury system is part of this tradition, and so is having Supreme and Appellate Courts with multiple justices. The American common-law has thousands of mothers and fathers, we all contribute in some way to how laws are interpreted and applied. So I am not that concerned about the meaning of the Constitution getting distorted to the point where it has no meaning, we have thousands of jurists and citizens anchoring the constitution in place.

    With regards to the individual mandate, without having read the federal decisions, I bet you that there have been originalist arguments supporting the mandate, (and if not I am certain several compelling arguments can be made in support).

    The point about common-law is something I want to stress, because during this discussion you questioned the validity of going to contemporary texts only after reviewing common-law. As a general principle, laws (even the constitution) are to be applied based on their plain meaning. It is only when there is ambiguity as to the meaning of the plain language, and where there are no judicial opinions on point are you to cite such contemporary sources or congressional records. That is not to say the contemporary sources aren't important, but they aren't law. They are helpful, but the texts you give such credence to are not dispositive, nor do they capture the sense and feeling of each individual representative that supported any particular law. They are at best an incomplete picture.

    Now, that said I think that there is nothing wrong with using contemporary sources as fuel for an argument that a particular legal opinion (or a line of legal opinions) was wrongly decided. They are certainly persuasive. They just aren't binding. It's sort of like when a state has a law, and the state appellate court has not issued any opinions about that law. So lets say you have a controversy in Illinois that is up for argument in a state trial or appellate court, and there is no Illinois decision on point. If a neighboring Wisconsin appellate court has issued an opinion on a similar law, that opinion can be cited as a persuasive source in Illinois. Same with a federal opinion about a similar federal law. Still one could cite your Illinois's legislative record and argue that the congressional intent of the Illinois law is different than what the Wisconsin or federal court determined was the proper reading of the law in those jurisdictions. The Illinois court in that situation would then make it's decision. However, after the Illinois appellate court writes a published opinion, that opinion is now law (unlike the contemporary source).

    Now, again, in challenging the Illinois appellate decision you may feel was wrongly decided, you can cite the contemporary source as grounds for overturning the decision at the Illinois Supreme Court, but until you do so the appellate court opinion is the law of the land.
  6. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The problem with looking to the common law first is that common law is subordinate to statutory law, and so it must respect the limits placed by the actual statute (up to and including the Constitution).

    Yes, you should look to the plain language first. That means that you should look at the actual words as they were understood at the time. At the very least, that requires looking to outside sources on the language usage of the time (such as contemporary dictionaries). To do otherwise would be similar to the claim that someone in Shakespeare's time saying "let us be gay" is advocating homosexuality (instead of just being merry).

    If there is ambiguity in the meaning of a statute at that point, where do you go? You claim that you should look to the common law next, but that doesn't logically follow. In claiming that the next source should be the common law, you are essentially saying that judges ruling in 1942 or 2000 have a better understanding of what the limits intended by the Commerce Clause are than the people who helped write it back in 1787. How are those justices supposed to have developed this greater understanding 150 or 200 years after the fact?

    This is even more critical when you are talking about expanding the government's power (as in the case of the individual mandate), rather than restricting it. Because our government is supposed to be one of limited, enumerated powers, it isn't logical for a Court to unilaterally decide to grant the government more powers. Those additional powers were reserved by the People, and only the People can grant them to the government by amending the Constitution.

    Contrary to what you might think, I don't have a problem with common law in general, nor do I think that precedent has no value. However, I do think that precedent should be used only as a guidepost to point you back to the actual historical data that you need to interpret the Constitution directly. It is not a substitute for the actual historical interpretation. Similarly, common law can be useful for filling in the cracks within the limits of the historical data, but it should not be used to build an addition on the building.

    Kimball Kinnison
  7. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Unfortunately thats not how the law works in this country. Even the strictest constructionists recognize that published opinions are law. Judges do in fact build additions on the building of law. If they get it wrong, the legislature can overrule them by revising the law to make it more clear. Happens all the time.

    What you fail to realize is that what you are describing is more like a Napoleonic code, not the tradition we have in this country. On this point you continue to fundamentally misunderstand American law. It's not that your method isn't sound, if you were a judge you'd be free to apply that approach. Further, by disregarding precedent as a judge, you would be creating new law yourself (although you could certainly claim you were just recognizing the law as it was intended).

    My point though, is that if you were a trial judge that disregarded a Supreme Court opinion based on your own personal interpretation of a law, even backed by contemporary sources, an Appellate court would be required to overrule you.

    I guess the point is that since judicial opinions are law, you shouldn't just disregard it because you see it differently. Just like with any statutory law, you shouldn't disregard laws you don't agree with. You should respect the opinions of judges, even if you disagree. Judge-made law is subservient to statutory or constitutional law (unless the law itself is found unconstitutional), just like trial opinions are subservient to appellate opinions.

    But it's still law.

    EDIT: Administrative law is another form of law that is to be respected. ;). Not sure how that fits in with my analysis but thought I would throw that out there.
  8. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    What is the point of having a Constitution that builds walls (limits) around what the government can do, if judges (who are a part of that government) can simply decree that the building is actually bigger, and put on an addition to that authority? That entire claim undoes the very principle of limited, enumerated powers that the Constitution is based upon.

    The Constitution is a grant of authority from the People, not from the government. Only the People have the authority to expand the power that it grants, because they reserved every last iota of power that wasn't granted.

    If I grant you a plot of land, out of all the land I own (don't get excited, I only own 1/6 acre), say I grant you everything between the sidewalk and the street, you can't then claim that I also gave you the sidewalk, and then the front yard, let alone the house and the back yard. You might claim all you want that you need more space, but what I kept isn't yours to take. You don't have the authority to take it. Even if we later amend the deal to allow you the sidewalk, that doesn't mean you get everything else, too.

    In the same way, if the Constitution didn't grant the government the power to do something (say, the individual mandate) in 1787, and it hasn't been amended to grant that power since then, then the government doesn't have the authority to claim that power, and that includes judges who are part of that government.

    The common law has to be subordinate to the statutory law, and confined within its boundaries, or else the statutory law is essentially meaningless as a limit on authority.

    It's one thing for the common law to take the limits set on the government and apply a more restrictive interpretation. It's another thing entirely for them to step outside those limits and grant new powers. The former stays within the authority granted to the government by the People. The latter usurps authority retained by the People which was never granted to the government.

    Kimball Kinnison
  9. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    I understand your frustration. Also, I think it's important to note that there is a difference between state common law and federal common law. Tort claims are historically a creation of state common law, not statute. My understanding is that there is no federal common law in that regard, meaning there are no private claims that can be created by virtue of creation or recognition by federal opinions.

    What is the point of having a constitution? It sets up a system of checks and balances. That is the brilliance of the American democratic model. The whole idea is that no one person gets to have too much power. No one judge can affect the kind of change you are talking about, and even at the very top of the Supreme Court you have 9 people who have to come to some sort of consensus.


    Here, to borrow from Obi-wan himself, I think you'll find that many of the truths we cling to depend greatly on our own point of view. One man's "grant of new powers" is another man's "preservation of liberty recognized by the constitution."


    Again, the kind of power grab you are talking about in my mind usually happens at the executive level, or through congress, and it's the Judiciary that prevents me from talking all your land. Also, if there is no clear definition of where the sidewalk begins and where the street begins, or what constitutes sidewalk and street, then a court has to decide. Their decision as to the interpretation of what those words mean and how that grant of land is to be applied is then law, and so when a few years later another person grants someone a plot of land, there is some law that helps determine what that means.



  10. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    The Supreme Court rules that police need a warrant for GPS tracking, in landmark 9-0 decision


    The U.S. Supreme Court ruled unanimously Monday that police must get a search warrant before using GPS technology to track criminal suspects.

    The ruling represents a serious complication for law enforcement nationwide, which increasingly relies on high tech surveillance of suspects, including the use of various types of satellite technology.

    A GPS device installed by police on Washington nightclub owner Antoine Jones' Jeep helped them link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before the appeals court overturned the conviction.

    Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor the vehicle's movements, constitutes a search, meaning that a warrant is required.

    "By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote. He concluded that the installation of the device on the vehicle without a warrant was a trespass and therefore an illegal search.

    All nine justices agreed that the GPS monitoring on the Jeep violated the U.S. Constitution's Fourth Amendment's protection against unreasonable search and seizure.



    Every once in a while, the Supreme Court pleasantly surprises me.
  11. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    Another link only? Which aspect "pleasantly surprised" you? What larger issues were left undecided? You put the word "landmark" in your link title, but this was actually a pretty narrow ruling.

    There was really no other way this case could have been decided. The Supreme Court unanimously focused on the act of physically placing a tracking device within a car, which amounted to a trespass, and so it needs a warrant. The concurring opinion also focused on the length of time that the tracker was in place. (in this case, 4 weeks) Relating to time, the SC said 4 weeks was too long, but didn't specifically indicate what length would have been acceptable. If the original agency had simply stuck something to the car's exterior, say the bumper, for a couple of hours to a day, the court very well have made a different ruling. Such a more limited practice still might be allowed.

    Also left undecided by the SC was if different tracking methods were used that didn't revolve around physically hiding a device under the car. Could the agency have used third party software and tracked the subject's smart phone? Or GPS responder? The SC left those examples alone without comment. Also, using such a tracker for non-criminal terrorist/intelligence is still allowed. The SC indicated that the exclusionary rule applied to the criminal evidence gathered in this case, but if no evidence is brought forth to criminal court, it would also be a different matter.
  12. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    Ghost, I'm looking at the legal update covering the case (US vs Jones) right now, so I have more information for you.

    It was a joint FBI-DC Metro Task Force. The agents actually did get a warrant for the tracking device, but it was good for 10 days. (There's that reasonable time limit mentioned by the SC again.) The agents continued to put a tracking device on the vehicle on the 11th day up to 28 days later.

    The Justice Department's official brief was that no warrant was even required to track the vehicle, as decided by a prior Supreme Court precedent case which held that no driver has an expectation of privacy while travelling on public roadways (US V Knotts was referenced) However, the SC invalidated the evidence gathered by the tracking device because the device was (semi)permanently attached to the undercarriage of the vehicle. Since the device was attached by an intrusion into the property, the manipulation required the warrant, not the tracking itself.

    Some important factors to keep in mind is that the SC never ruled on if a warrant was even required, what would be an allowable time, and if the tracking info itself was unreasonable. So, important points of law that are not affected by this are 1)if the tracking device itself did not require manipulation of the vehicle. (a magnetic sticky device on the bumper, perhaps?) and 2) if non-intrusive methods were used such as pinging the driver's smart phone, etc.. were used. What could also happen is if agents had probable cause which indicated that the driver committed a crime, they could use a GPS tracker to gather information for that crime only, and then cease tracking. Interesting stuff, although still quite narrow in scope.
  13. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    The important aspect of the case is that there's a majority ruling but no majority opinion. Justice Alito filed an opinion joined by a plurality of the court. Sotomayor and Scalia filed separate concurring opinions. What that means is that what the actual precedent from U.S. v. Jones is remains an almost completely open question.
  14. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Actually, Scalia's opinion was the majority opinion. Sotomayor joined that opinion (giving it 5 votes) in addition to writing her own concurrence. Alito's opinion only had 4 votes.

    The breakdown was:

    Majority: Scalia, Roberts, Kennedy, Thomas, and Sotomayor
    Concurrence #1: Sotomayor
    Concurrence #2: Alito, Ginsburg, Breyer, and Kagan

    Kimball Kinnison
  15. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    Sorry, you're absolutely right, I didn't read that carefully.

    Ok, so the majority opinion is: a car is an "effect" protected from unreasonable search, attaching the GPS to the car is a search, affirms the Harlan concurrence from Katz for "reasonable expectation of privacy" and that in this case the trespass to install the device directly on the car violates that expectation, and so violates the fourth amendment.

    I don't have a problem with that either, but I do agree with the concurring opinions that it would have been nice to get some kind of guidance on whether the comprehensive monitoring itself actually constitutes a violation of reasonable expectations as opposed to the act of installing the monitoring device. It's the former that makes people uncomfortable. The latter is almost purely incidental to the heart of the matter.
  16. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Interesting Slate article on the subject.

    "What Justice Scalia really wants to know is what James Madison thought about video games." - Justice Alito.
  17. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    Supreme Court accepts to hear case over affirmative action in college admissions.

    Link

    I believe that Justice O'Connor said about 10 years ago that affirmative action is still necessary now, but had only 10-20 years left. Could this be the beginning of the end for affirmative action?



    The Supreme Court agreed Tuesday to tackle another election-year blockbuster and will decide whether the University of Texas' race-conscious admission policies violate the rights of white applicants.

    If health care reform, illegal immigration crackdowns, voting rights and TV indecency were not enough, now the nine-member bench is poised to add to its high-profile docket, wading into the divisive, sea-change issue of state-mandated racial diversity and affirmative action. Oral arguments would be held this fall, ensuring the court -- however it decides the appeal -- will be a major campaign issue. A ruling however will not likely be issued until early 2013.

  18. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    She said it in the summer of 2003. It's pretty implausible that this is the timeline she had in mind. This is a naked attempt to re-litigate recently settled law, because conservatives disliked the outcome. But insofar as they have the Court makeup now to do what they couldn't then, it's not really surprising.
  19. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    DG

    I believe that Justice O'Connor said about 10 years ago that affirmative action is still necessary now, but had only 10-20 years left. Could this be the beginning of the end for affirmative action?

    Hopefully. Affirmative Action is a terrible, simplistic solution to a complex problem.

  20. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    So, I think the Supreme Court made some news in the last few months... ;)

    Looks like we were wrong on this.




    Anyone know what the Supreme Court is likely to take up this fall and spring?
  21. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    The Justice Department is asking the Supreme Court to look at 4 different cases that challenge the constitutionality of DOMA's section 3:
    http://news.yahoo.com/u-asks-supreme-court-consider-two-more-gay-005447198.html

    I believe that Proposition 8 is also making its way to the Supreme Court too.

    What's the likelihood of SCOTUS taking up any of these cases on their next docket, after this summer recess ends?



    Article:

    Last edited by Darth-Ghost, Sep 11, 2012
  22. Juliet316 Chosen One

    Member Since:
    Apr 27, 2005
    star 7
    None. It'll be next year's Spring/Summer session before any of these are taken up. One of the reasons Arizona's law and the ACA challenges were taken up by the court this past summer was because there were issues in both cases that could easily impact the election and it was better to resolve them sooner rather than let them fester until the election.
  23. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    We'll see, it seems the Supreme Court is about to take on a number of explosive cases this Fall:

    http://www.cnn.com/2012/09/28/justice/court-returns/index.html?hpt=hp_t3
  24. GrandAdmiralJello Moderator Communitatis Litterarumque

    Manager
    Member Since:
    Nov 28, 2000
    star 10
    What, not mentioning the ATS?
  25. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    :confused: