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VinBucFan

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#60 : June 28, 2013, 03:11:09 PM

This is what the Constituion states at to the judicial system:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

How could the Judicial Power of the US be vested in one supreme Court if Congress could, as an example, strip it of jurisdiction in cases of orginal jurisdiction?

Congress can't strip it of it's original jurisdiction. Where are you even getting that from?

^^^ Exactly, but it can strip the SC of its appellate jurisdiction (Ex Parte McCardle). Why the different treatment?  TWO SENTENCES . .  . WITH A PERIOD IN BETWEEN:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

In certain cases the SC has original jurisdiction. FULL STOP. In another set of cases, the SC has appellate jurisdiction subject to such exceptions and regulations as Congress shall make BECAUSE the inferior courts are left to Congress.

The end of the sentence states that the congress can make exceptions and regulations. What exactly is it that you are suggesting it is that the congress can make exceptions to, Vince? If what you and Marshall say is true, that congress cannot extend the court's jurisdiction beyond appellate status on the cases mentioned, then what does the word "exceptions" mean in your suggested context?

Sorry, but I am going to side with the numerous courts in this land that all read a "." as ending the thought and that read everything after the "," in the second sentence as a qualifier to that sentence.  By your way of reading, Congress can create exceptions and regulations to everything in the Constitution in front of that ","  :)  makes no sense, right?

What makes no sense is the way that you are interpreting the two sentences. I am not suggesting that the second sentence has anything to do with the first one. You're basically pulling that argument from your backside. I am suggesting the same thing that you are, that the exceptions and regulations have to do with the court's appellate jurisdiction. The difference being, you seem to think congress having the ability to create "exceptions and regulations" limits it from expanding the court's jurisdiction, when the very nature of the words suggest that they mean the complete opposite.


looks like we are just going to have to agree to disagree then, its only been the law of the land for a couple hundreds years . .  . what do all those stupid judges know anyway ;-)

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#61 : June 28, 2013, 04:36:54 PM

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.



That's because the supreme court isn't supposed to be a democratic branch , it's supposed to be a check against democracy , or " tyranny of the majority " ,  by upholding the rule of law and protecting the MINORITY . A good example of this is what just happened with the gay marriage ruling.


The problem is that some of the constitution is currently so vague that it allows for activist judges to purposely intrepret it to their ends , but the problem is not in the way the system itself is set up . Vagueness in the law is. We need checks against democracy . The majority is not always right . It's the minority who needs protection.

Now,  if you can achieve a super-majority , you have the right to change what is constitutional ,  so that is a different story. If that is what you are implying then I agree.

What is your point? I was wrong? Ok. You win. I was wrong.

           

CBWx2

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#62 : July 02, 2013, 03:05:46 PM

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.

Because the SC doesnt represent anyone or anything beyond the Constitution. By definition, however, the people are superior because thyey can amend the Consitution. The SC is not the arbiter of right and wrong, but rather about what the Constitution says. Jefferson (who I think was awesome) was just pissed because of the politics (and the lecture)

Amending the Constitution means nothing when you have a group of justices that can interpret the amendment any way that they wish and justify it any way that the wish and you can't do anything about it. That's the part that you seem to be missing.

As to Jefferson, he wrote countless essays and letters to prominent figures about taking issue with only the "judicial review" aspect of the decision, and did so for many, many years after the decision, up until the day he died, so I think your assumptions about his motivations do not hold up against even the slightest degree of scrutiny. Jefferson wasn't upset about the outcome from a political standpoint, because he essentially won the case. He didn't end up having to honor the commissions. What he was pissed about is the way in which Marshall came to the decision, i.e. striking down a portion of a law that the Constitution did not give him authority to strike down, and the implications of such an action.

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston, 1825. ME 16:114

Let's use Plessy as an example, because your prior comments made it sound as if  you think the PEOPLE wanted one thing but the SCt messed it up in Plessy.  If you put the Jefferson system in place at the time of Plessy you think the PEOPLE give us, essentially, Brown versus the Board? C'mon? The Seperate Car Act was state law, that's what I think you are missing, in hindsight the SC got it wrong in Plessy, clearly, BUT it took legislatures, state legislatures putting those types of laws in place, as the so-called "will of the people" first. So the notion you would get a different result through direct deocracy is almost laughable, the Civl Rights Movement was fueled by Brown not by Congress. Brown is 1954, LBJ doesnt sign until '64?

What's interesting about this statement is that there actually was legislation passed by congress that would have criminalized the passage of Jim Crow laws years prior to the Plessy V Ferguson decision. The Civil Right's Act of 1875 was passed by congress with the purpose of ending Jim Crow. It was struck down by the Supreme Court in 1883. Interestingly enough, the same justice who was the lone dissenting voice in the Plessy V Ferguson case was the same justice that cast the lone dissenting opinion in this case.

CBW, that's interesting, but my point was a simple one: Do you think that implementing the Jefferson plan at the time of Plessy would have resulted in the states turning America into the post-Brown version of America 60 years earlier than the SC actually did in Brown?

I think that if a bill was passed by Congress that would have eliminated Jim Crow in 1875, it isn't out of the realm of possibility that Jim Crow would have been viewed negatively by a majority of states in 1896. These laws didn't get integrated northward until decades after the Plessy decision. The north actually became less progressive after Plessy than it was in the years leading up to Plessy.

looks like we are just going to have to agree to disagree then, its only been the law of the land for a couple hundreds years . .  . what do all those stupid judges know anyway ;-)

Can you say with any degree of honest certainty that the nine justices sitting on the bench right now are the most qualified individuals among all of the legal scholars in the nation to review issues of constitutionality?


CBWx2

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#63 : July 02, 2013, 03:21:00 PM

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.



That's because the supreme court isn't supposed to be a democratic branch , it's supposed to be a check against democracy , or " tyranny of the majority " ,  by upholding the rule of law and protecting the MINORITY . A good example of this is what just happened with the gay marriage ruling.

I agree that the SCOTUS is not supposed to be a democratic branch, but it is also not supposed to uphold or strike down laws at it's own behest. That's the cost of not being beholden to the people via democratic elections, according to the founders. Judicial review was not a concept foreign to them. It not being included in the Constitution wasn't an oversight, or something that they simply hadn't considered. It wasn't included on purpose. The UK had implemented and removed a system of judicial review long before the colonies rebelled, and the reasons for removing it was because it granted too much authority to the judiciary, and rendered it more powerful than Parliament.

As to the DOMA decision, inferior courts have cast down far more progressive decisions regarding gay rights than the SCOTUS went on this decision. I suspect that if the people had a say, DOMA wouldn't have even been standing law for as long as it was.


VinBucFan

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#64 : July 03, 2013, 02:07:30 PM

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.



That's because the supreme court isn't supposed to be a democratic branch , it's supposed to be a check against democracy , or " tyranny of the majority " ,  by upholding the rule of law and protecting the MINORITY . A good example of this is what just happened with the gay marriage ruling.

I agree that the SCOTUS is not supposed to be a democratic branch, but it is also not supposed to uphold or strike down laws at it's own behest. That's the cost of not being beholden to the people via democratic elections, according to the founders. Judicial review was not a concept foreign to them. It not being included in the Constitution wasn't an oversight, or something that they simply hadn't considered. It wasn't included on purpose. The UK had implemented and removed a system of judicial review long before the colonies rebelled, and the reasons for removing it was because it granted too much authority to the judiciary, and rendered it more powerful than Parliament.

As to the DOMA decision, inferior courts have cast down far more progressive decisions regarding gay rights than the SCOTUS went on this decision. I suspect that if the people had a say, DOMA wouldn't have even been standing law for as long as it was.

Huh?

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#65 : July 08, 2013, 04:36:38 PM

Interesting...

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration's advocate in the Supreme Court, thought the court's decision was just wrong.

"Because we're not there yet," he says. "We're not there yet, and the facts on the ground in Shelby County itself showed that."

Stanford's McConnell says the decision's reasoning is just "made up."

"There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."


http://www.npr.org/2013/07/05/198708325/whose-term-was-it-a-look-back-at-the-supreme-court

When a majority of Supreme Court Justices say it's there, it's there, even when it actually isn't. Judicial review does not give the Constitution supremacy, it gives the Supreme Court supremacy over the Constitution.
: July 08, 2013, 04:38:56 PM CBWx2


VinBucFan

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#66 : July 08, 2013, 05:25:31 PM

Interesting...

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration's advocate in the Supreme Court, thought the court's decision was just wrong.

"Because we're not there yet," he says. "We're not there yet, and the facts on the ground in Shelby County itself showed that."

Stanford's McConnell says the decision's reasoning is just "made up."

"There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."


http://www.npr.org/2013/07/05/198708325/whose-term-was-it-a-look-back-at-the-supreme-court

When a majority of Supreme Court Justices say it's there, it's there, even when it actually isn't. Judicial review does not give the Constitution supremacy, it gives the Supreme Court supremacy over the Constitution.

Holy crap . . . you mean NPR and a Stanford professor disagree with a ruling on voting right?   SHOCKING

By the way, your point of view keeps you from noticing this:

""There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."[/i]

little slight of hand by your professor.

I looked quickly and didnt see a reference to Marbury . . . I am guessing that is the CBW touch?
: July 08, 2013, 05:27:24 PM VinBucFan

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CBWx2

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#67 : July 08, 2013, 05:44:49 PM

Interesting...

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration's advocate in the Supreme Court, thought the court's decision was just wrong.

"Because we're not there yet," he says. "We're not there yet, and the facts on the ground in Shelby County itself showed that."

Stanford's McConnell says the decision's reasoning is just "made up."

"There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."


http://www.npr.org/2013/07/05/198708325/whose-term-was-it-a-look-back-at-the-supreme-court

When a majority of Supreme Court Justices say it's there, it's there, even when it actually isn't. Judicial review does not give the Constitution supremacy, it gives the Supreme Court supremacy over the Constitution.

Holy crap . . . you mean NPR and a Stanford professor disagree with a ruling on voting right?   SHOCKING

By the way, your point of view keeps you from noticing this:

""There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."[/i]

little slight of hand by your professor.

You don't know much about Stanford, or the former judge in question, do you Vince?

Also, I did notice it. It isn't slight of hand. You just seem to be missing exactly how it's relevant.

How does the portion of the voting rights act that was struck down violate the constitution when there is no constitutional requirement that suggests that congress "has to" change the law to "fit current conditions"? The conservative majority invented this Constitutional requirement. It doesn't really exist.
: July 08, 2013, 05:47:03 PM CBWx2


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#68 : July 08, 2013, 05:53:14 PM

Lol. How about this CBW? There are quite a few threads on this board discussing Supreme Court decisions, direct me to the thread discussing a liberal-favored ruling with a post by you complaining about Marbury v Madison.

I will wait ...but I will not hold my breath ;-)

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#69 : July 08, 2013, 06:06:25 PM

Lol. How about this CBW? There are quite a few threads on this board discussing Supreme Court decisions, direct me to the thread discussing a liberal-favored ruling with a post by you complaining about Marbury v Madison.

I will wait ...but I will not hold my breath ;-)

I commented in this thread first because the ruling came down first. As I stated before, when the SCOTUS casts down a liberal ruling, I'm happy about it, but that doesn't mean that they should have power that the Constitution does not grant them, or that Jefferson is any less right about it regardless of the outcome. Hell, I happen to agree wholeheartedly with Earl Warren's opinion in Brown V Board, and I still use it as a perfect example of why judicial review is such a bad thing.

How about you actually address the points brought up instead of avoiding them? The fact that it is a liberal or conservative ruling has no bearing on the fact that there is nothing in the constitution that supports the ruling, despite the claim that it was made on the grounds of constitutionality. You are the lawyer here, correct? As Durango would say, dazzle me with your brilliance...


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#70 : July 08, 2013, 06:09:24 PM

So no other thread? Really? ;-)

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#71 : July 09, 2013, 09:25:05 AM


How does the portion of the voting rights act that was struck down violate the constitution when there is no constitutional requirement that suggests that congress "has to" change the law to "fit current conditions"? The conservative majority invented this Constitutional requirement. It doesn't really exist.

I thought Progressives considered the Constitution to be a living document? If so, doesn't that imply change to fit current conditions is pretty much mandatory?

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#72 : July 09, 2013, 09:31:39 AM


How does the portion of the voting rights act that was struck down violate the constitution when there is no constitutional requirement that suggests that congress "has to" change the law to "fit current conditions"? The conservative majority invented this Constitutional requirement. It doesn't really exist.

I thought Progressives considered the Constitution to be a living document? If so, doesn't that imply change to fit current conditions is pretty much mandatory?


Good point

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#73 : July 09, 2013, 12:57:21 PM


How does the portion of the voting rights act that was struck down violate the constitution when there is no constitutional requirement that suggests that congress "has to" change the law to "fit current conditions"? The conservative majority invented this Constitutional requirement. It doesn't really exist.

I thought Progressives considered the Constitution to be a living document? If so, doesn't that imply change to fit current conditions is pretty much mandatory?


Good point

Obama or Bush exceeding their Constitutional authority = Assuming dictatorial powers.

SCOTUS exceeding it's Constitutional authority = changing to fit current conditions.

Interesting...


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#74 : July 09, 2013, 12:59:36 PM

lol

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