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United States Supreme Court Discussion Thread.

Discussion in 'Archive: The Senate Floor' started by Darth Mischievous, Nov 3, 2004.

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  1. Kimball_Kinnison

    Kimball_Kinnison Jedi Grand Master star 6

    Oct 28, 2001
    Shredder, what part of the words "federal" and "state" do you not understand?

    I have never claimed that a state government can simply take away the rights of the people in that state. However, I have argued that the people in a state can choose to surrender certain powers (which inherently infringe upon rights) to the state. That is a big difference that you have never even attempted to grasp.

    Now, I'm going to walk you through this, in short, declarative sentences, since you don't seem to grasp the basic principles of a written Constitution.

    1) The power of a government is granted from the people, through a constitution.
    2) The US Constitution covers the grant of powers to the US (federal) government.
    3) These powers are granted by the people of the United States, through the ratification process.
    4) If a power is not granted to the federal government through the US Constitution, then the government does not have that power.
    5) A state constitution covers the grant of powers to the state government.
    6) These powers are granted by the people of that state, through the ratification process.
    7) If a power is not granted to the state government through the state constitution, then the government does not have that power.
    8) The grants of powers in the US and the state constitutions are different from each other.
    9) Neither the state nor the federal government can usurp powers from the people. They can only be granted those powers by the people.

    Are you following so far? Point 9 is a critical one. You keep claiming that I say that a state can simply do whatever it wants to. That is false, and I demand that you retract that statement and cease making it.

    The 9th Amendment is basically saying that what is covered in point 4. It says that if the Constitution is silent on a matter, then that power is not granted to the federal government. Remember, the US Constitution only deals with granting powers to the federal government, not the states (with a few, minor exceptions dealing with the relationship between the two entities).

    Within that context, the 10th Amendment takes over. It permits that powers not granted to the federal government can be granted to the states, as long as they are not expressly forbidden to the states. However, point 7 above still applies. The states have no powers, except those granted to them through their constitution.

    A state cannot usurp powers from the people. In order for it to be granted powers, it must be through the ratification of a constitution, or through an amendment to the constitution. Both of those options require a vote by the people (the exact percentage required varies depending on the specific state constitution). In Virginia (where I live) it requires a simple majority vote in a general election.

    Under your interpretation, points 5-8 are not possible, because such things would infringe "unenumerated rights" protected by the 9th Amendment. The alternative is that only certain "unenumerated rights" are protected by the 9th Amendment. However, there is no textual support in the 9th Amendment to indicate that this is the case, nor is there any
  2. Vaderize03

    Vaderize03 Manager Emeritus star 5 VIP - Former Mod/RSA

    Oct 25, 1999
    A side note:

    Bowers v Hardwick was about sodomy in a private home, not the juvenile death penalty.


  3. Obi-Wan McCartney

    Obi-Wan McCartney Jedi Grand Master star 5

    Aug 17, 1999
    Shredder, Kimball has provided you with an overly simpistic, idealized overview of constitutional construction. In the land of reality, things work slightly differently. Constitutional law is a little more in depth that that, there has been over 200 years of discussion on it, which Kimball conviently ignores, and if you want to understand how the constitution works. Situations arise, the constitution is often at odds with itself, there are competing doctrines and philosophies contained.

    However, I'm happy to play along with Kimball's interpretation, because it is a valid way to interpret the constitution.

    BUt I'm still waiting for him to show us (waiting for like five months I think) how state constitutions grant explicit authority to outlaw abortions.

  4. Earl_Ferrell

    Earl_Ferrell Jedi Youngling

    Sep 6, 2004
    His argument is more along the lines of "one cannot assume the state grants the right unless specified in it's constitution".

    As opposed to your position, which holds the Ninth Amendment controlling, his is based on the idea that the democratic process must work to define the rights and powers left open to debate, instead of granting a blank check for judges to simply "invent" rights (such as the right to abortion) under the guise of Amendment Nine.

    The Ninth Amendment was meant more to discourage the idea that there cannot be debate, or democratic process, around said unenumerated rights. It is up to the people to decide what those rights are. Modern-day liberals misinterpret this to mean that it is up to the judiciary to grant those rights, when the truth is that it simply prevents state and federal governments from preventing democratic votes on the existence of rights.

    By claiming a "right to privacy" and blanketing things like abortion underneath it, the true purpose of the Ninth Amendment-to encourage local and state democratic debate over just what the unenumerated rights are-has been circumvented.

    Thankfully, with the institution of more constructionist jurists such as John Roberts and Sam Alito on the supreme court, these decisions will soon be returned to the arena of public and political debate, where they were meant to be decided.

  5. Obi-Wan McCartney

    Obi-Wan McCartney Jedi Grand Master star 5

    Aug 17, 1999
    Right to privacy is an implicit right derived from the 1st, 3rd, 4th, 5th, and 9th amendments. (edit: 14th amendment too). His use of the 9th amendment is proper to the extent that just because the right isn't specifically referred to doesn't mean it doesn't exist. That alone doesn't prove it, but the courts rulings and interpretations of the previous amendments means for all practical purposes, it does exist.

    This is not the court inventing a right, but enforcing a right.
  6. Earl_Ferrell

    Earl_Ferrell Jedi Youngling

    Sep 6, 2004
    Your argument of "inference" is based on the erroneous notion of what legal scholars refer to as "substantive due process".

    I once heard this concept described as meaningless, like the term "green pastel redness".

    While your argument is sound, in and of itself, "substantive due process" is a judicial invention. The 14th Amendment protects the "nuts and bolts" of how the government may deprive an individual of "life, liberty, and the pursuit of happiness", but it certainly does not speak on the outcome. The idea that the endpoint must be "fair" or not violate "common sense" has indeed been injected by liberal jurists over the past 75 years to mean exactly that; if asked, many would say that not granting a basic right to choose or right of privacy is against said "common sense".

    However, our system of government is based on law, not "common sense". If one has a problem with the outcome, one can exercise political power-one can vote.

    Turning to judges to place volatile social issues outside the context of political debate through court rulings circumvents the very notion of "each state a laboratory" that the Framers intended, and this is why we need 9 strict constructionists on the Supreme Court.

    John Roberts and Sam Alito are an excellent start. If a conservative president makes it in the White House in 2008, then it is likely that John Paul Stevens and Ruth Bader Ginsburg will retire (or expire) as well, and this would open up the opportunity to finally return the Supreme Court to its' constructionists roots.

  7. Obi-Wan McCartney

    Obi-Wan McCartney Jedi Grand Master star 5

    Aug 17, 1999
    Are you kidding me? You don't believe in substantive due process? Are we living in the dark ages?

    You don't believe that free speech rights extend to the state governments? Don't you believe the equal protection gauruntees of the constition apply to every manner of government in the United States? You seem to be a conservative so I'll go out on a limb and suggest you support the 2nd amendment, you don't believe the 2nd amendment applies to states? Could California outlaw the sale of all guns of any kind? Of course not.


    DARTH-SHREDDER Jedi Knight star 5

    May 6, 2005
    KK, I read your very long post on the Constitution. You don't need to treat me like an idiot, and like I know nothing about the Constitution.

    I did misunderstand what you were saying about the states and rights. I apologize, but that doesn't mean you need to walk me through the Constitution step by step. Misunderstanding your postition =/= not understanding the Constitution.

    I agree with most of what you said, but...

    Under your interpretation, points 5-8 are not possible, because such things would infringe "unenumerated rights" protected by the 9th Amendment.

    No, state constiutions are not unconstitutional because of the 9th amendment. I never said that. All I've said, over and over again, is that the state has all the powers guarenteed in the 10th amendment, it's just that the state can't intrude on specific rights (enumerated or unenumerated), and the state constitution cannot give the state the power to intrude on those rights.

    Even the people can not surrender rights to the state government through the state constitution. Those rights are always guarenteed no matter what, as the 14th amendment states.

    And I have never said or implied that the unenumerated rights of the 9th amendment completely cancel out the state government's authority.

    I hope that clears up my position.
  9. Jediflyer

    Jediflyer Jedi Master star 5

    Dec 5, 2001
    My thoughts on this is that KK's interpretation of the Constitution is right on.

    However, it is impossible to move back to that interpretation (can you imagine going back to the original interpretation of the commerce clause?).

    Therefore, I end up roughly at McCartney's position.

  10. acrovader

    acrovader Jedi Youngling

    Oct 14, 2005
    Bush can choose who he wants. If he were a Democratic president, liberals wouldn't be whining about him "stacking" the courts. He's the elected president, he can select as he pleases. Even if the means selecting a judge that interprets the Constitution.

    We need MORE Antonin Scalias, Alitos and John Roberts. And less activist judges.
  11. Jediflyer

    Jediflyer Jedi Master star 5

    Dec 5, 2001
    Bush can choose who he wants.

    And Congress can filibuster whoever they want.

    If he were a Democratic president, liberals wouldn't be whining about him "stacking" the courts.

    But if he was a Democrat, Republicans would be screaming about subverting the Constitution by cramming the court with activist judges. [/i]

    He's the elected president, he can select as he pleases.

    But Congress must give consent and they can withhold that consent for whatever reason they choose.
  12. nick-skywalker

    nick-skywalker Jedi Master star 1

    Jul 4, 2002
    How can Judges who endorse such a wide interpretation of the president's powers and adopt the "unitary executive theory" at its most extreme form be considered "non-activists"?? Just because they fall in line with the Conservatives and their agenda?
    The role of the Judicial branch is vital because it is the one that holds the balance between the executive and the legislative branches and the only truly independent from populist pressure and demands.
    If you pack the Courts with so-called "originalists" (in reality, simply Conservatives)you imperill the democratic balance by according too much power to the executive and history has shown that this is usually not a good idea.Furthermore, you limit peoples'rights and empower the government excesivelly. Personally, I think that a very powerful government is, in fact, the greatest threat to democracy and human rights.
  13. Mr44

    Mr44 VIP star 6 VIP - Former Mod/RSA

    May 21, 2002
    Just to throw in some updated information.

    For those who didn't know, earlier in the week, Stephen Breyer gave a speech at the University of Chicago Law School. Breyer, of course, was one of Clinton's SC picks who was approved by Congress back in 1994. Of course, the new justices were mentioned.

    What was funny, in kind of a sad way, is that some people wanted to think that Alito was somehow more sinister simply because he was nominated by the current President instead of focusing on his actual qualifications. Except Breyer himself said that Alito was no more willing to overturn prior precedent than he was, and that differing opinions are what makes the SC work. He basically said that all judges have agendas, but that doesn't mean that they don't objectively interpret the laws.

    Earlier in this thread, someone mentioned how civilized the Supreme Court seemed compared to the regular political process. This was a perfect example of that civility.

  14. Obi-Wan McCartney

    Obi-Wan McCartney Jedi Grand Master star 5

    Aug 17, 1999
    Well, now that SD has banned almost all abortions, including rape and incest, this issue will have to be litigated in federal court. I wonder if the Supreme Court will hear the case, or let the lower court ruling striking down the law stand. (Now, there has not yet been a hearing, assuming the law is followed, the lower federal courts would have ample precedent dictating to them that they must strike the law.
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