InfraBlue wrote:So, upon what do the justices draw their conclusions if a case is constitutionally neutral or vague, and there aren't any precedents to base their decisions? That was the situation in the two cases cited by your article.
They make no ruling if the constitution doesn't speak to the matter. (They likely wouldn't even hear the case.)
Come on, this is elementary school civics, folks.
roger wrote:If a case is constitutionally neutral, I would suppose fishin's answer would apply. Otherwise, the USSC must rely on the constitution, though I know of no remedy if they do not.
If a case is "constitutionally neutral" as you put it, the USSC should not rule on it. It isn't their job to consider whether something stands up to international or even US law. Their ONLY reason for being is to consider whether laws or practices of the US are allowed by the Constitution. That's it.
Scrat wrote: Their ONLY reason for being is to consider whether laws or practices of the US are allowed by the Constitution. That's it.
This is a bit of folly. While most cases that get to the USSC are appeals based directly on constitutional grounds there is nothing that limits them or prevents them for considering any case that has been through a lower court.
Article 3, Section 2, Clause 1 of the Constitution reads
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
joefromchicago wrote:Scrat wrote:
Joe - The question isn't whether or not someone can come up with arguments for the practice, the question is whether the practice is allowed by the Constitution and the rules by which the USSC is required to operate.
So, in other words, you don't care if there's an argument
for the practice, you just care if there's an argument
against it.
So, in other words, (I love this game!
) you think we should consider
arguments for murder if I suggest we must follow the law
against murder? I'm not talking about dueling arguments here; I'm talking about people trying to make a case for the USSC doing things they are not allowed to do.
You could make a case against free speech, and I could make one for it, only mine has the w
eight of LAW, of the Constitution, behind it. Yours would not. It's the same with the question here: you are either acknowledging the way things are intended to function, or you are making arguments for ignoring the rules and the law. To suggest that the two are equivalent... well, it doesn't work for me. But maybe you don't care much for our system of government as originally intended and designed. Perhaps you're one who likes justices who legislate from the bench. That's what they do when they consider anything outside the Constitution for their decisions.
I doubt if you'll get a response, Fishin', although you might. I would just add that the basis upon which the Supremes determine the constitutionality of statute is Marbury v. Madison, in which John Marshall took note of these powers outlined in the passage you gave, and posited that no people would write a constitution were it not to be the supreme law of the land, and that these powers vested in the court gave them the authority and the duty to pass judgment on statute.
Whatever the putative origin of the legal principles of the Supremes may be has no relevance so long as there is a constitutional basis for their rulings. Absent a challenge to a Justice on the basis of se bene geserit, we are basically standing at the wailing wall, and listening to fruitless lamentations . . .
fishin' wrote:Scrat wrote: Their ONLY reason for being is to consider whether laws or practices of the US are allowed by the Constitution. That's it.
This is a bit of folly.
Is it? Perhaps a
bit. :wink:
I was focusing on cases involving Constitutional questions. The cases cited in the article WERE Constitutional cases, and the court's only point of consultation in such should be the Constitution itself. (When does the USSC agree to hear cases that do not involve a Constitutional issue???)
Scrat wrote:joefromchicago wrote:Scrat wrote:
Joe - The question isn't whether or not someone can come up with arguments for the practice, the question is whether the practice is allowed by the Constitution and the rules by which the USSC is required to operate.
So, in other words, you don't care if there's an argument
for the practice, you just care if there's an argument
against it.
So, in other words, (I love this game!
) you think we should consider
arguments for murder if I suggest we must follow the law
against murder? I'm not talking about dueling arguments here; I'm talking about people trying to make a case for the USSC doing things they are not allowed to do.
You could make a case against free speech, and I could make one for it, only mine has the wait of LAW, of the Constitution, behind it. Yours would not.
Careful, Joe, she has the "wait" of law behind her.
Setanta wrote:I doubt if you'll get a response, Fishin', although you might. I would just add that the basis upon which the Supremes determine the constitutionality of statute is Marbury v. Madison, in which John Marshall took note of these powers outlined in the passage you gave, and posited that no people would write a constitution were it not to be the supreme law of the land, and that these powers vested in the court gave them the authority and the duty to pass judgment on statute.
Whatever the putative origin of the legal principles of the Supremes may be has no relevance so long as there is a constitutional basis for their rulings. Absent a challenge to a Justice on the basis of se bene geserit, we are basically standing at the wailing wall, and listening to fruitless lamentations . . .
Ignoring your childish swipe at me, I can't help but recognize that you seem to know what you are writing about. I am more than happy to admit that I am stating the way I have always understood this to be. If I am actually wrong, are you more or less likely to help me see that when your first words in this discussion are to speak badly of me to another?
How about we put aside the gradeschool stuff and discuss this? You have my attention. It appears that you understand this issue better than I and are in a position to 'splain it so that I can understand how I have it wrong. Care to give it a go? I have ZERO interest in sniping back and forth and EVERY interest in understanding this issue more fully. Thanks.
Frank Apisa wrote:Careful, Joe, she has the "wait" of law behind her.
Perhaps it's because she is so far out ahead of the law that it needs time to catch up to her (and nice use of the edit feature there,
Scrat -- talk about revisionist history!).
Scrat: It's clear from your posts that you have no understanding of constitutional jurisprudence, Supreme Court jurisdiction, the role of precedent in judicial opinions, the nature of "judicial activism," or the basic rules of argumentation. Apart from that, though, you're doing a great job!
joefromchicago wrote:Scrat: It's clear from your posts that you have no understanding of constitutional jurisprudence, Supreme Court jurisdiction, the role of precedent in judicial opinions, the nature of "judicial activism," or the basic rules of argumentation. Apart from that, though, you're doing a great job!
It's certainly clear that I don't have your understanding; for one thing I consider judicial activism an abomination, not a "feature" of jurisprudence. Of course, how likely is it that you'll help me see the error of my thinking while you're being such a pompous ass? Hmmm?
I think I'll take my chances with Setanta.
That was not a childish swipe at you Scrat, you have characterized my remark to Fishin' into what you then call playground tactics, which makes your response no better in character than what you criticize in mine.
My only intent was to suggest that you would offer no refutation to Fishin's quote of the text of the constitution, and you have not done so. It wasn't character assassination, you know--it was a surmise that as there is little or nothing to argue with in what Fishin' posted, he likely wouldn't get an argument.
I personally believe that "judicial activism" is favored by the right as much as by the left, and that the squabble arises out of what constitutes such activism, and from whence it arises. Conservative commentators have in the last few decades touted a concept referred to as "natural law," which is no more and no less a divergence from "strict construction" than would be appeals to international law.
Se bene geserit is a medieval latin formulation, which means "well (self) conducted." It is the preferred basis for the tenure of judges, in that it avoids a situation in which a judge might be removed on an abritrary basis by a government displeased with that judge's rulings. What i was saying is that the combination of the passage Fishin' quoted with the statement of the authority of the Court as given by John Marshall in the decision in Marbury v. Madison means that any decision of the Supremes for which they can adduce a constitutional basis in basically unchallengeable--unless and until a Justice or Justices were to be removed for their conduct. This has never happened, and is unlikely to happen. That is why i further characterized this discussion as fruitless lamentation--whether the right were to protest "judicial activism" based on international law, or the left to protest "judicial activism" based on natural law, the protests were nugatory absent the removal of the offending Justice or Justices. That being a highly unlikely event, this is a discussion of speculative theory only--and saying as much is not a criticism, just a defining observation.
Here's the crux of the biscuit, Scrat:
In the lame duck portion of the John Adams administration, Mr. Marbury was appointed to the bench in Washington. Before he could take his seat, however, Jefferson was elected. Jefferson's Secretary of State, James Madison, refused to deliver Mr. Marbury's commission--and without that piece of paper, Marbury could not take his seat on the bench. He brought suit against the government in the person of Mr. Madison. Hence, the suit is entitled Marbury v. Madison. It is alleged, by many, that Mr. Marbury could have brought his suit to a lower court, however, i don't think such a debate is germaine here. John Marshall wrote his opinion on two matters of fact and law. The first was to consider whether Mr. Marbury's case had merit, and what the remedy would be. Justice Marshall found that Mr. Marbury's demand for the delivery of his commission was a valid claim, and that a writ of mandamus was the appropriate remedy. A writ of mandamus is a lawful order of a court to an inferior court or tribunal, or to any public official or private person acting in a position of public authority, to perform an act which has been determined to be legal. Marshall's next consideration was whether or not the Court had the authority to issue the writ. Marshall held that a nation would not begin their political life with a written constitution, were said constitution not held to be the supreme law of that nation. He held, therefore, that the constitution "trumps" all other statute or magisterial authority. Therefore, determining that Mr. Marbury had a right to receive his commission, that the remedy was a writ of mandamus to Mr. Madison to deliver the commission or a faithful copy from the record, and that the court had the authority to issue the writ, based upon the authority and duty of the Court which he adduced in his second argument--Marshall issued the writ for Mr. Madison to deliver the commission to Mr. Marbury. The case had profound implications, of which no one should not doubt that Mr. Justice Marshall was aware. This decision inferentially held that neither the Legislative Branch nor the Executive Branch were above the law as embodied in the Constitution. It further established on a precedential basis that the Court would, upon appeal, determine whether any statute or executive order were constitutionally legal, and that the Court had the duty to uphold the authority of the Constitution. In a sense, one could consider this judicial activism of the highest order--some few grumbled at the time that Marshall had permanently overturned the balance of powers in favor of the judiciary.
Therefore, based upon the jurisdictional description for the Court which is embodied in the passage which Fishin' quoted, and the decision of Marshall in Marbury v. Madison, i assert that the Court's decisions are above reproach--so long as a constitutional basis for their rulings is adduced, or a finding of fact or law of a violation of constitutionally acceptable statute. As a side comment, i would note that not all decisions of the Court are directly referential to the Constitution, as they may refer to statute when it is held that such statute does not violate any constitutional provision. I could not actually argue that this is not an "unbalancing" of the powers, given that the only way to circumvent the court is to amend the constitution, something usually very difficult of achievement (unless you're doing something really popular, like repealing prohibition).
Just a comment and certainly not in a league with Setanta's terrific exposition of USSC history.
We've heard a lot in the past several years about whining, usually "liberal whining." But I've heard a low, constant whine for about twenty years and it seems to come from those who are terrified of change. They believe that the USSC and the Constitution are (or should be) considered concrete and immutable, as concrete and immutable as their concept of "god," overlooking the obvious necessity of and difficulties with interpretation over time in a deliberately secular system.
We have to put up with the possibility of mistakes on the part of the highest court. In recent history there have been two decisions (and probably many more) which appear to have been sloppy in the extreme -- one is Roe v. Wade and the other is Bush v. Gore. This is not to argue whether the results of those decisions are good or bad, but whether the decisions had legal integrity. My understanding is that neither did.
We also know that the Constitution contains elements within it which we don't put up with now, and quite rightly. We've had Supreme Courts of greater and of lesser distinction. We are a 200-year+ nation riddled with imperfections because, unlike modern-day Iran (for example) we don't have "perfect" mullahs making "god-given" decisions on our behalf, but rather depend as best we can on our own experience, knowledge, and common will -- and tension/balance among the three branches of government -- for interpretation, de facto modification, and just application of our basic laws.
Ah, Joe, nit-picker etraordinaire . . . ok, you win, you're always right. So tell me, Joe, do you hold therefore, that there is no truth in any of what i wrote, or are you just exercising your penchant for attempting to show others up as often as possible, in order to preen your over-large ego?
Aw come on, Set, you were doing splendidly! Don't spoil it!
Setanta wrote:That was not a childish swipe at you Scrat, you have characterized my remark to Fishin' into what you then call playground tactics, which makes your response no better in character than what you criticize in mine.
My only intent was to suggest that you would offer no refutation to Fishin's quote of the text of the constitution, and you have not done so.
You're rewriting history. You stated that I'd not respond to him, and I did, but whether I did or would is not useful to this exchange. Share your knowledge of the topic not your contempt for me personally, and we'll fare far better.
Again, I don't care to snipe, so please let's stick to the topic. (!)
Quote:I personally believe that "judicial activism" is favored by the right as much as by the left, and that the squabble arises out of what constitutes such activism, and from whence it arises. Conservative commentators have in the last few decades touted a concept referred to as "natural law," which is no more and no less a divergence from "strict construction" than would be appeals to international law.
I am not one of those, so I hope you'll understand if I don't wish to argue a point I've not made.
Quote:Se bene geserit is a medieval latin formulation, which means "well (self) conducted." It is the preferred basis for the tenure of judges, in that it avoids a situation in which a judge might be removed on an abritrary basis by a government displeased with that judge's rulings. What i was saying is that the combination of the passage Fishin' quoted with the statement of the authority of the Court as given by John Marshall in the decision in Marbury v. Madison means that any decision of the Supremes for which they can adduce a constitutional basis in basically unchallengeable--unless and until a Justice or Justices were to be removed for their conduct. This has never happened, and is unlikely to happen. That is why i further characterized this discussion as fruitless lamentation--whether the right were to protest "judicial activism" based on international law, or the left to protest "judicial activism" based on natural law, the protests were nugatory absent the removal of the offending Justice or Justices. That being a highly unlikely event, this is a discussion of speculative theory only--and saying as much is not a criticism, just a defining observation.
Okay, I want to make sure I follow you... You are basically stating that what I have always taken to be the law of the land the de jure rules for the court are in reality simply de facto rules born out of the need/desire to have a stable court; that only consulting the Constitution is not the justices mandate so much as a safe way to do their job.
That sounds plausible. If we assume you are right, I'm still not sure that I'd be comfortable with the notion of the USSC considering extranational laws, opinions or norms in deciding cases not involving international issues (treaties and such).
BTW, if you know of a good link (or a good book) on this topic, I'd appreciate your sharing it. Thanks.
Well, Tart, my statement that Marshall issued the writ may well be wrong, although i'll be damned if i can find Joe's evidence of it in the opinion which he has linked, and which i have read in the past--but i don't have time today to re-read it in its entirety. Whether or not he actually issued the writ has little bearing upon the profound influence the opinion has had for two centuries. However, if Joe wishes to dispute that, as well, he is free to do so, and i don't doubt that he will. I have observed that Joe is very fond of this sort of criticism, and there is certainly no love lost between us.
I wasn't so much saying that Scrat, as that it would be nearly impossible to demonstrate a case of "extra-constitutional" judicial activism, and absent such a case, any complaints are moot points. This site, is of course, a place for mooting such points, so i don't criticize the thread for any inherent faults. Additionally, i would note that i know of no way beyond either constitutional amendment, or re-writing statute to account for judicial objection, by which to circumvent the Court. I don't see this as a big problem, personally, as i have yet to see any cases which i would consider abusive on the part of the court.
Sniping is in the eye of the beholder, Scrat, you're perpetuating as much as you might claim that i am.
Edited to remove the evidence of incipient senility . . .
