United States Supreme Court Discussion Thread.

How do you find Ginsburg anymore liberal than Breyer? And, how do you find Ginsberg MORE liberal than Souter?

Furthermore, Alito, on his first day on the job, broke ranks with the conservative Scalia, Thomas, and Roberts. He allowed a stay of execution where the conservatives wanted to lift it...

One thing about the jurists, is that they respect the rule of law, and they respect precedent. They know they can't overrule previous law just because they would have ruled differently.

It's going to take a RADICAL conservative shift on the court to undue the influence of the mid 20th cenutry justices. Slowing it down, as Rehnquist succesfully did, is easier, (and probably correct), but I highly doubt we'll see reversals.

The nature of the court is the recognize rights, not to take away regonzied rights.

 

No, the FRAMERS of the Constitution outweigh whatever Jefferson may(or may not have) thought. Re-read the document. There's a clear distinction between endorsement via the state and establishing an official state religion. The government endorses religions all the time by granting them special statuses(like non-taxable orgs for example).

So show me where the framers specifically say that the First Amendment doesn't prohibit the government from endorsing a religion?

And don't respond by saying that that's exactly what they say in the First Amendment, because that's only your interpretation of it.

 

Therein lies the philosophical difference between an activist progressive and a constructionist.

The USSC isn't there to recognize rights or invent rights, it is to apply the wording Constitution to the law.

Legislatures convey rights and priviledges that aren't specified in the Constitution, or the legislature can amend the US Constitution as they did to abolish slavery, grant sufferage and so on to grant rights.

It is not the job of the USSC to recognize new rights that do not and have not existed.

 

It is not the job of the USSC to recognize new rights that do not and have not existed.

The Supreme Court must naturally interpret the constitution to fit the modern age. Unless you'd like to have us all operate under 18th century ideas, new interpretations for rights that have always existed are necessary.

 

The next thing you're going to tell me is that gay marriage is a right found within the US Constitution, KW.



...notwithstanding the fact that women couldn't even vote before the document was amended.

...notwithstanding that slavery was legal before the document was amended.

I suppose you'd say that it would be OK for the USSC to simply have ruled those things on its own without following Constitutionally provided guidelines for checks on their power, KW?

The judiciary has a limited role, one that progressives which to make legislative to impose societal change without sanction from the legislative body (as it cannot pass via the proper means).

It is the duty of the legislative body to amend the document or pass legislation to convey rights, not the judiciary.

The founders were wary of sentiment such as yours which inherently entails a judicial oligarchy.

If it is the will of the people to convey such rights and priviledges, then let it be done in the appropriate and Constitutionally-sanctioned means rather than be imposed on the public by judicial fiat. Such things as SSM and other issues fit into that category. The Judiciary would then weigh that law against the actual Constitution - not their own inherent personal beliefs - to determine viability.

 

There is a lot to be said for the argument that a constitution must change over time, and that the present generation should not be bound by 18th-century ideas. The logical conclusion of it, however, is an unwritten constitution along the lines of the British model--in which the legislature determines what current values are, or what current circumstances require.

Everyone seems to accept that the absolutely clear parts of the Constitution--that two senators are assigned to each state, that Congress consists of two houses, and so on--are binding today regardless of the fact that they represent no more than the views of the people in the 18th century who adopted them. If you disagree with the past generation binding the present, then you should disagree with having any written Constitution at all.

 

DM, you had to throw in words that I did not use to make your point. All I said was that the Supreme Court RECOGNIZES rights, I did not say INVENT rights.

Branthoris, computers didn't exist before the 20th century. 1st, 4th, and other constitutional amendments never were meant to apply to computers as they ddin't exist. Does that mean we need a constitutional amendment to deal with those issues? Or is it possible that the court can balance new ideas and stay rooted in long held constitutional doctrines.

 

As OWM said, the USSC doesn't invent rights, they recognize them. What if a state tried to outlaw SLEEPING (of all things)? Is it inventing a "right to sleeping" to say that's unconstitutional? Of course not, the Constitution may not expliciting guarentee it, but it's obvious that the framers wouldn't have wanted that.

 

As OWM said, the USSC doesn't invent rights, they recognize them. What if a state tried to outlaw SLEEPING (of all things)? Is it inventing a "right to sleeping" to say that's unconstitutional? Of course not, the Constitution may not expliciting guarentee it, but it's obvious that the framers wouldn't have wanted that.

But I think you are missing the point of your own example. Very rarely if ever, are such decisions based on all or nothing concerns.

Using your same example, a state simply wouldn't outlaw the general concept of "sleeping," but rather a specific practice related to it. What if a state prohibited sleeping in public parks? Or required that a minor refrain from it in school? Or dictated that a commerical truck driver get a defined amount of it per miles driven?

If sleeping was an enumerated right, then the state would be subject to stricter allowances when dealing with it. If not, then there is no "higher concern" that guides the state's reaction to sleeping, and it would have greater leaway related to its own authority.

 

Mr44, you are not the son of Jor-El .

Has anybody stopped to consider that a conservative court might be balanced out over time by a more liberal legislature?

Such a move has been the evolution of the twentieth century; the liberal courts have been balanced by a conservative movement. As everything cycles, I believe the opposite will eventually happen.

Things have a way of evening out over time.

Peace,

V-03

 

But isn't that where interpretation comes in? The USSC must decide whether sleeping in general is a guarenteed right in the Constitution, or only in some instances. So to use your example, I don't think sleeping in a public park or at school is a guarenteed right, as it mainly deals with the public.

Sleeping in the privacy of your own home, I would argue, is guarenteed because of personal liberty. Similarly, other things you do in the privacy of your own home are also protected because of personal liberty.

So if a state decided to prohibit sleeping inside the privacy of your own home, (I know that is completely unreasonable and would never happen) is it "inventing" a right to sleep?

 

You have it all wrong, because you are coming at it from the wrong end completely.

As per the 10th Amendment, the Supreme Court doesn't have to decide whether a "right to sleep" is protected by the Constitution, because all rights and powers are understood to be retained by the people unless they are granted by the applicable constitution(s) (federal constitution for actions involving the federal government and some limited state actions, and state constitution for actions involving the state government). Therefore, the court doesn't have to decide whether the right is protected, but whether the authority to infringe that right is granted.

OWM has repeatedly made a big deal out of an offer I made to take any state and review its constitution for where it would provide authority ot regulate abortion and/or contraceptives. He selected Pennsylvania, and I have been trying to read through that state's constitution to determine if such authority was granted.* However, no matter which way it goes, it still won't support his viewpoint, nor will it damage my arguments.

The basis for the Supreme Court striking down abortion laws relies on the "right to privacy", a right not guaranteed by the Constitution (it is only protected by the lack of powers given to infringe it). If Pennsylvania's constitution does not give authority to regulate in such matters to the state, then that lack of power, rather than some "right" supposedly guaranteed in the US Constitution, is the basis for overturning Pennsylvania's abortion laws. The Supreme Court's ruling may have the "right" result, but the entire basis for that ruling would be wrong. Because the basis is used as part of precedent for future cases, that alone makes it reason enough to overturn it.

If, on the other hand, the Pennsylvania constitution does provide that authority to the state, then the Supreme Court's ruling is completely in error, both in basis as well as in result. Again, the ruling should be overturned.

The ends do not justify the means, and a ruling that gives the "right" result by using the "wrong" reasons is at least as dangerous as an outright "wrong" ruling.

Another example of this can be found in the case of Bowers v. Hardwick. There, ov

 

As per the 10th Amendment, the Supreme Court doesn't have to decide whether a "right to sleep" is protected by the Constitution, because all rights and powers are understood to be retained by the people unless they are granted by the applicable constitution(s) (federal constitution for actions involving the federal government and some limited state actions, and state constitution for actions involving the state government). Therefore, the court doesn't have to decide whether the right is protected, but whether the authority to infringe that right is granted.

And per the 14th amendment, no state has the authority to infringe on protected rights.

The basis for the Supreme Court striking down abortion laws relies on the "right to privacy", a right not guaranteed by the Constitution (it is only protected by the lack of powers given to infringe it). If Pennsylvania's constitution does not give authority to regulate in such matters to the state, then that lack of power, rather than some "right" supposedly guaranteed in the US Constitution, is the basis for overturning Pennsylvania's abortion laws. The Supreme Court's ruling may have the "right" result, but the entire basis for that ruling would be wrong. Because the basis is used as part of precedent for future cases, that alone makes it reason enough to overturn it.

Just curious, KK, since when do you know more about the Constitution than the entire Supreme Court?

 

Actually, all the 14th Amendment says is that:

Simply saying that the Constitution protects "liberty" is a cop out. That basically gives the Supreme Court a blank check to overturn every law, because on one level or another every law violates someone's liberty.

So, where are these "protected rights" listed? Where is the differentiation between "protected" and "unprotected" rights? You seem to think that there are "unprotected" rights, since you keep saying "protected rights", which implicitly states that there are both kinds.

I have asked you this multiple times before, but how else can you reconcile the 9th and 10th Amendments? Your argument rests almost completely on the Preamble and the 9th Amendment, but completely neglects the 10th Amendment. I've answered that question for you multiple times, including documentation from multiple historical sources that demonstrate the validity of my arguments. You've yet to support your argument with anything except hot air.

If you are simply resorting to an ad hominem attack on me, I guess you're willing to admit that you can't support your arguments using historical documents, nor are you all that confident in your argument being persuasive.

So, either put up or shut up. Refute my arguments with supporting documentation (i.e. historical documents indicating that your interpretation is consistent with the historical meaning of the Constitution) or simply admit that you are simply full of it.

I'm waiting.

Kimball Kinnison

 

Simply saying that the Constitution protects "liberty" is a cop out. That basically gives the Supreme Court a blank check to overturn every law, because on one level or another every law violates someone's liberty.

No, that's not what I was saying. You say that the people can actually surrender their rights to the states, and states can actually infringe on rights if given the authority. But the 14th amendment states the state cannot infringe on any rights that people have.

And I see your point in that "protected liberty" can be used to say any law is unconstitutional, but it has protect some rights, otherwise there'd be no point in having it in there.

So, where are these "protected rights" listed? Where is the differentiation between "protected" and "unprotected" rights? You seem to think that there are "unprotected" rights, since you keep saying "protected rights", which implicitly states that there are both kinds.

You're right, I shouldn't have said "protected" rights. I didn't mean to imply some rights were portected and others aren't. I don't see how something can be a right if it's not "protected."

I have asked you this multiple times before, but how else can you reconcile the 9th and 10th Amendments? Your argument rests almost completely on the Preamble and the 9th Amendment, but completely neglects the 10th Amendment.

How does it neglect the 10th amendment? States can make any law they want as long as it isn't prohibited to them or if it's a right guarenteed to the people. (and that includes a few implied rights, as said in the 9th amendment) If it's not one of those two, they have all the powers in the world. That's basically what the 10th amendment says.

So how am I neglecting the 10th amendment?

If you are simply resorting to an ad hominem attack on me, I guess you're willing to admit that you can't support your arguments using historical documents, nor are you all that confident in your argument being persuasive.

So, either put up or shut up. Refute my arguments with supporting documentation (i.e. historical documents indicating that your interpretation is consistent with the historical meaning of the Constitution) or simply admit that you are simply full of it.

I'm waiting.

I just elaborated on my argument for you earlier in this post.

I was not trying to attack, you I was just wondering how it is you say that all these Supreme Court cases weren't ruled correctly like you know so much more about the Constitution than they do.

Your philosophy of the Constitution contradicts the philosophy of almost all the Supreme Court members.

 

Well, it would totally damage your argument that the states have a right to outlaw abortion, so I think it would support my viewpoint, albeit through alternate constitutional construciton, and it would totally hurt your own legal beliefs on abortion.

And KK, I think it is you who needs to put up or shut up. The right to privacy does not exist...because you say so? How about putting forth some case law, some legal treatises, law review articles, something the legal community actually respects, not just your unqualified say so. It's not hard, there is valid constitutional weight behind your position, it's just that you have never bothered to dig any up. I've even dug up the arguments for you.

Furthermore, the KK simplified school of law is not a recognized institution. Interpretting the constitution isn't quite as simple as your "just read it the way I read it" approach. You haven't provided any documents, you haven't provided any coherent legal analysis, and you admonish Shredder for speaking his mind?

The right of privacy is a recognized constitutional right. If you read the old threads, I provided countless examples of rights not explicitly enumerated within the constitution, that are nonetheless protected. If you want to put forth a serious argument that the bill of rights and the 14th amendment don't protect privacy rights in any way, I'd suggest you supply something a little more substantial than your own theories.

 

The problem with an all-encompassing 'right to privacy' is that anything can be utilized to fall under that category. Such situations can lead to anarchy and societal chaos, which is the opposite of the rule of law.

The Framers didn't place into the constitution such an all-encompassing 'right' as the basis for Constitutional law because it basically asserts an individual's right to behave in any fashion they wish as they have the right of 'privacy'.

OWM: I'm sure you can dig up many things during the time of the Framers which go totally against the modern conception of the 'right to privacy'.

If the Framers knew that was the case, then why do you think they would have sanctioned these legislative-type rulings by the USSC which institute societal change due to a perceived 'right to privacy' even though no such thing existed upon the framing of the document?

There are certain things that the Constitution forbids which convey a certain sense of privacy, but that is by no means a sanction of this so-called fundamental right which the modern progressive left utilizes to institute social change from the bench.

 

That is the weakest argument I have ever heard. It's weak because it applies to ANYTHING DM, ANY right. For example, "the problem with an all-encompassing 'right to free speech' or 'right to free exercise of religion' is that anything can be utilized to fall under that catagory. Such situations can lead to anarchy and societal chaos, which is the opposite of the rule of law.

Do you get my drift? ANY right can be abused, misused, and misapplied.

 

Actually, that perfectly illustrates the problem with the Supreme Court being able to "discover" new rights that are "protected" by the Constitution. It doesn't matter whether they are found in "penumbras" or simply made up as they go along.

It's also my focusing on the 9th Amendment to the exclusion of the 10th, arguing that "retained" in the 9th means "protected", is so dangerous.

It grants the Court a dictatorial status, especially when you combine it with some people's constant cries of stare decisis (which, you may have noticed, people shut up about when it comes to rulings like Lawrence, because that overruled the stare decisis in Bowers).

That's the real problem. Without a clear, unaltering* standard by which to determine the constitutionality of one thing or another, and as long as you allow the Court to "discover" new rights in the Constitution, you are simply blowing in the wind, drifting to and fro according to the whims of whomever sits on the bench at the time.

I have said this repeatedly, and I can back it up from the Federalist Papers (and have done so many times). The Supreme Court was designed to be the most conservative (in the classical, not political sense) branch of government. It was never meant to be an organ of social change. It was designed to constantly pull back the other branches of government as they exceeded the powers originally granted to them by the Constitution. It wasn't designed to "discover" new rights, but to determine only whether the legislative and/or executive acted within the authority granted to them by the People through the Constitution (go read Federalist 78 for a discussion of that).

If the Court has the power to simply "discover" new rights, then it has the power to rewrite the Constitution at will, and therefore the Constitution (as rewritten by the Courts) no longer represents the voice of the People, and becomes a tyrannical government.

Kimball Kinnison

* Unaltering, as long as the Constitution itself does not change, that is.

 

Yes, but you still ignore the reality of the situation today. Did the Court simply "invent" Miranda rights, or did they regonize rights that already existed?

Do you have any federalist papers that deny that an unenumerated right of privacy exists within the written text of the constitution?

Do you have any valid legal arguments to suggest that privacy is not an unenumerated or implicit right to be factored in? Again, just look at the 1st amendment and all it has been read to protect.

My problem is not that conservatives don't believe in a right of privacy, my problem is that most of the conservatives here based on a simplistic and uneducated reading of the constitution.

 

OWM,

You are trying to shift the burden of proof, so that I would have to prove a negative (which is usually logically impossible). That doesn't work.

Read Federalist 84. When discussing the original lack of a Bill of Rights, Hamilton states:

I go further, and affirm that bills of rights, in the sense and to the
extent in which they are contended for, are not only unnecessary in the
proposed Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted; and, on this very account,
why declare that things shall not be done which there is no power to do?
Why, for instance, should it be said that the liberty of the press shall
not be restrained, when no power is given by which restrictions may be
imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power. They
might urge with a semblance of reason, that the Constitution ought not
to be charged with the absurdity of providing against the abuse of an
authority which was not given, and that the provision against
restraining the liberty of the press afforded a clear implication, that
a power to prescribe proper regulations concerning it was intended to be
vested in the national government. This may serve as a specimen of the
numerous handles which would be given to the doctrine of constructive
powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I
cannot forbear adding a remark or two: in the first place, I observe,
that there is not a syllable concerning it in the constitution of this
State; in the next, I contend, that whatever has been said about it in
that of any other State, amounts to nothing. What signifies a
declaration, that "the liberty of the press shall be inviolably
preserved"? What is the liberty of the press? Who can give it any
definition which would not leave the utmost latitude for evasion? I hold
it to be impracticable; and from this I infer, that its security,
whatever fine declarations may be inserted in any constitution
respecting it, must altogether depend on public opinion, and on the
general spirit of the people and of the government.[3] And here, after
all, as is intimated upon another occasion, must we seek for the only
solid basis of all our rights.

These statements later became the basis for the 9th and the 10th Amendments.

Hamilton is saying (using the example of the Freedom of the Press) that such rights (at that time, the entire Bill of Rights consisted of unenumerated rights) were already protected, not directly by the Constitution, but by the lack of authority for the government to infringe them. Again:

They would contain various exceptions to powers not granted; and, on this very account, why declare that things shall not be done which there is no power to do?

That covers the "right to privacy", as well as any other made up "unenumerated right" you want to choose.

You accuse conservatives of being too simple in reading the Constitution, but you forget that it was designed to be a simple, straightforward document. Compare the length of

 

That's all good and fine, but your particular interpretation of the Federalist papers carries zero legal weight. It does nothing to overrule Griswald or Roe, nor does it address any of the issues, theories, or cocerns addressed in those (and following) cases.

Regardless, even under your analysis, a right of privacy would exist because the government would have no authority to intrude on a person's privacy without proper authority. Just look at what the constitution says, police must get warrents before they violate your privacy rights, soldiers are forbidden from being quartered in your home, freedom of expression is virtually unlimited within your own home.

The constitution may be designed to operate in a simple way, and for the most part, it does. But there are unlimited questions that arise in the course of human existence and society, questions that a simple document does not address. Yet these questions must be answered, so the constitution is our bedrock of prinicples.

It is the foundation of our society. Our entire hosue of jurisprudence is built on that foundation. Unfortunately, KK, you seem to think that all you need to pay attention to is the foundation. That's why the walls keep crumbling down around your arguments, you completely ignore the house of law built on that constitution.

Now, my point in pointing out your intellectual laziness is in the fact that you can easily claim there isn't adequete support for a right of privacy, that there does not exist a proper foundation. But what you want to do is tear down the entire house, the entire system built of the millions of Americans, and construct one enitrely based on how you personally view that foundation.

I'm glad you are putting a lot of stock into the federalist papers and to an understanding of original intent in the constitution. However, even coming from that school of thought, you can't re-invent the wheel, you can't simply ignore 200 years of jurisprudence to make your arguments work.

 

Yes, but there is a major difference. I can accept that protection of privacy rights is a good thing (notice that I have not been advocating that the government can unilaterally infringe your privacy). However, the major problems lie not in the results, but in the methods used to gain those results.

I have asked you this before, but you have routinely avoided answering the question. Legally, do the ends justify the means? If the Constitution doesn't support an action (say restricting medicinal marijuana), is a justice justified in coming up with the "right" ruling (i.e. matching a particular viewpoint), even if it is not supported by the Constitution?

Take Bowers and Lawrence as an example. Seeing as the two rulings are pretty much diametrically opposed to each other, it is safe to say that logically, at least one of them is not in keeping with the original meaning of the Constittuion, even as amended today. At least one of those rulings has to be "wrong" (although many people would disagree on which one gives the wrong result). Were any of the justices supporting the "wrong" ruling justified in doing so, simply because they believe the result is "right"?

Or does the reasoning and rationale behind the result matter as well? What good does it do to get the "right" result, if your process is tainted, distorted, or corrupted? Does that not damage the institution of the Courts overall? Has that not led to the increasing political nature of the Courts in the past several decades?

If the "wrong" result is reached through the right process, there still exist many other ways to correct that result through those processes. How do you correct the damage caused by a "right" result using the "wrong" process?

OWM,

How long after a judicial mistake is made should it simply be ignored? 12 years (the time between Bowers and Lawrence)? 60 years (the time between Plessy and Brown)? 100 years? 200 years?

If the reasoning

 

Kimball, I agree with just about every point you made in the last post. I agree that judges must remain within the bounds of the constitution. I agree that it would improper to violate those rules simply to achieve a "good" result. And quite honeslty, I've been wondering what your stance is on the Bush wiretapping program, its quite likely this issue WILL come before the high court.

However, you seem to be missing the point. You can't overrule settled law with your say so. Improper ruling s have been overturned, but they had a grounding in the constitution and the law. Furthermore, it is done very rarely, with great weight and consideration, not just becaues one of the Justices happened to reread the federalist papers.

You have to read the law. You have to delve into the questions Griswald and Roe posed, and find other good law to back up your claim. In fact, you can just read the dissents in those cases to get a pretty good understanding of what a competent argument supporting your position would be.

But if you want to stick to your simplified understanding of the constitution because its easier than understanding how our system really works, that's fine with me. Even going on your method, the court would still find that the state government has no right or authority to compel a women to stay pregnant, to compel her to endanger her life by keeping another living being inside of her, since the people never gave up that right, unless you can make a cogent argument that a state constitution grants such authority.

 

The problem with an all-encompassing 'right to privacy' is that anything can be utilized to fall under that category. Such situations can lead to anarchy and societal chaos, which is the opposite of the rule of law.

And the problem with believing that there isn't a right to privacy, to stay consistent, you must also believe there is no right to do ANYTHING done in the privacy of your own home. This including eating, sleeping, drinking, exercising, walking, every single thing you can think of in your own home. This demonstrates the problem with the mentality that every single right has to be spelled-out. Because

Now let's be honest here, how many of you anti-right to privacy people believe it would be perfectly constitutional to outlaw one of the things listed above, such as sleeping?

If you answered no, then you will need to explain to me the difference between outlawing certain types of sexual pleasure and other ordinary things done in your home. They all affect no one but the people engaging in them and infringe on no one's rights or freedom. So believing one is guarenteed but not the other is putting your own morals into the equation, which is considered "judicial activism."

Any takers?

It's also my focusing on the 9th Amendment to the exclusion of the 10th, arguing that "retained" in the 9th means "protected", is so dangerous.

KK, you're basically using a silly technicality (the word "retained") to make the entire 9th amendment essentially ineffective. What would be the purpose of the 9th amendment establishing some "unemurated rights" if those rights weren't protected at all and the state governments could just take them away? What is the point of creating a "right" if that right can actually be taken away and state governments are free to intrude and infringe on them as they please.

Also, you nagged me about not responding to a question of yours that you claimed you've asked me multiple times, and I actually did give you my answer. I'd appreciate it if you acknoledged it.