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Bucfucious

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#150 : July 13, 2013, 05:42:27 PM

Ever notice how the founding fathers consistently speak of the government they gave us as if it is some sort of vicious wild animal bound in the best cage they could manage, and they are admonishing us not to let it get out of control? I think them dudes knew what they were talking about...

Cyrus

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#151 : July 13, 2013, 06:01:34 PM

You mean in exchange for the special privileges granted to the government from the people, that the bill of rights functions as a list of things that government cannot do to the people? I've noticed that.

Dolorous Jason

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#152 : July 13, 2013, 07:04:49 PM

Many of the founders didn't think we needed a Bill of of Rights . Not because they didn't give a crap about our rights . Quite the opposite. They thought it was actually dangerous because it allowed an opening for government to ASSUME more powers,  simply because those rights weren't listed as well. Hence the reason it was never ratified with a Bill of RIghts already included , and were only added later in the form of amendments.

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system"
 -James Madison

Amazing how smart some of these guys were . They predicted the future....
: July 13, 2013, 07:08:05 PM Fire Mark Dummynik

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

           

Cyrus

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#153 : July 13, 2013, 08:14:33 PM

Many of the founders didn't think we needed a Bill of of Rights . Not because they didn't give a crap about our rights . Quite the opposite. They thought it was actually dangerous because it allowed an opening for government to ASSUME more powers,  simply because those rights weren't listed as well. Hence the reason it was never ratified with a Bill of RIghts already included , and were only added later in the form of amendments.

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system"
 -James Madison

Amazing how smart some of these guys were . They predicted the future....

Yes. Great stuff.

DJ bringing it strong!

John Galt?

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#154 : July 18, 2013, 10:58:49 AM

you will not admit it, but you should be able to see now why I bowed out of this conversation before and why I will do it again now.  There's no point in discussing an issue that isn't genuine.

CBW's issue is Judicial Review. How is that issue not genuine????


Btw, you never found or posted a single comment by you, out of 10s of thousands, where you objected to judicial review before the Voting case. I just gave you a second chance to prove me wrong and all you're doing is proving me right . .  again


What difference does that make?  The fact that he never objected before in no way makes his arguments any more or less sound.


CalcuttaRain

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#155 : July 18, 2013, 11:24:41 AM

you will not admit it, but you should be able to see now why I bowed out of this conversation before and why I will do it again now.  There's no point in discussing an issue that isn't genuine.

CBW's issue is Judicial Review. How is that issue not genuine????

The issue is genuine (to some), CBW's interest in it is not. My comment could've been clearer, my bad. CBW raises it now because he is upset with the result. SEE . . . every other SCOTUS thread in here with many posts by CBW never mentioning the issue.

 Many people raise Judicial Review when they get a result they dont like. The simple fact is MANY things are not specifically addressed inthe Coinstitution and, indeed, people on CBW's side of the fence often use that very fact to justify expansion of government, so its ironic now to hear someone like CBW object.  The very structure of our government . . . and history going back to the Magna Carta . .  makes little sense without judidical review . . .  without some entity enforcing the Constitution . .  its really just a piece of paper. The SCOTUS is far from perfect, but a system of checks and balances is always going to have tension in the boundaries, and so it has been the role of courts, going way back, to enforce the written document.

Btw, you never found or posted a single comment by you, out of 10s of thousands, where you objected to judicial review before the Voting case. I just gave you a second chance to prove me wrong and all you're doing is proving me right . .  again


What difference does that make?  The fact that he never objected before in no way makes his arguments any more or less sound.

See my comment above. 

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CalcuttaRain

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#156 : July 18, 2013, 11:36:57 AM

Here you go JG?, if you are interested in Judicial Review and , I guess, think it is wrong, then want to take a shot at my question below, the one CBW refused to address (see my earlier comment that his interest in Judical Review is not genuine)? I put my question in BOLD so you could find it:

Play out Brown v Board with no judicial review. Actually lay out what you think happens to Oliver and the others without it.

Play out race relations in the United States had judicial review not struck down a number of civil rights bills passed by congress in an 1883 ruling, which were aimed at doing the same thing that Brown V Board did and more, except that they were passed about 75 years earlier. While you are trumpeting the virtues of Brown V Board, you are forgetting that it was that ruling, coupled with Plessy V Ferguson, that made Brown V Board necessary in the first place.

You should try reading John Marshall Harlan's dissent in both of those cases. The man knew more about the meaning of the Constitution and the effects that those decisions would have on race relations in the United States than any other justice of his day, but since he was in the minority, it didn't matter.

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John Galt?

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#157 : July 18, 2013, 11:43:44 AM

All three branches of our governement have long ago overstepped their constitutional limits.  Decades, not years ago.

That is true also .

My point with the Air Force comment is that it doesnt really make sense to say that the world only exists if it is in the Constitution. The Air Force is not the only example,

It is a dumb example because it is wrong. Section 8: The Congress shall have Power To...provide for the common Defence....To raise and support Armies...

The Air Force is an army that uses different vehicles than the regular army and the Constitution states "armies" PLURAL


there are many things that are part of everyday life that are not in the Constitution.
Off the top of my head, there is nor freedom of "expression" and there is not "right to remain silent"

Amendment V: No person shall...be compelled in any criminal case to be a witness against himself...

If you cannot be compelled to be a witness against your self, that means you can "remain silent". This is NOT a SCOTUS interpretation of something not in the Constitution,
it is a common sense interpretation of the wording of the 5th Amendment.
The Miranda decision was that SCOTUS determined that this implied that one had to be informed of the right during arrest, something which is NOT in the constitution.
The right to remain silent is in the Constitution, the Requirement that police read this right (in English, Spanish, Portuguese, Russian, Klingon, etc.) to you is NOT in it.



CalcuttaRain

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#158 : July 18, 2013, 12:36:38 PM

All three branches of our governement have long ago overstepped their constitutional limits.  Decades, not years ago.

That is true also .

My point with the Air Force comment is that it doesnt really make sense to say that the world only exists if it is in the Constitution. The Air Force is not the only example,

It is a dumb example because it is wrong. Section 8: The Congress shall have Power To...provide for the common Defence....To raise and support Armies...

The Air Force is an army that uses different vehicles than the regular army and the Constitution states "armies" PLURAL

I am not going to take the time, but as even you noite, it was AN EXAMPLE.  Off the top of my head, the Constitution doesnt not mention freedom of expression or a right to remain silent, etc. . .  . as your own INTERPRETATION indicates  . . and then things like Miranda

The point -- and you have to start reading the discussions --  was made in response to Dolo's comment that, essentialy, judicial review is easy because  (paraphrasing) "if it aint in the Constitution, it doesnt exist."  There are MANY, MANY, MANY accepted rights/issues/concpets/practices . .  and some critical ones at that  . . . . that are not in the Constitution, but rather in jurisprudecne developed over hundreds of years dating back even before our Constitution.  With all due respect to those who make the claim, the "if it ain't in the Constitution," which is essentially the argument advanced against judicial review, is almost nonsensical. 

Human beings cannot write words simultaneously comprehensive enough and clear enough to not only cover current life, but all future possibilites. There will always be shades of gray and that is the role the courts, to fill in the gaps or make sure they confrom with the Constituion, even if the words "judicial review" are not in the Constitution.  You just actually INTERPRETED the words of the Constituiton yourself, so I dont know what your argument would be against judicial review:


there are many things that are part of everyday life that are not in the Constitution.
Off the top of my head, there is nor freedom of "expression" and there is not "right to remain silent"

Amendment V: No person shall...be compelled in any criminal case to be a witness against himself...

If you cannot be compelled to be a witness against your self, that means you can "remain silent". This is NOT a SCOTUS interpretation of something not in the Constitution,
it is a common sense interpretation of the wording of the 5th Amendment.
The Miranda decision was that SCOTUS determined that this implied that one had to be informed of the right during arrest, something which is NOT in the constitution.
The right to remain silent is in the Constitution, the Requirement that police read this right (in English, Spanish, Portuguese, Russian, Klingon, etc.) to you is NOT in it.

You just said (in bold) the "right to remain silent is in the Constituion" when it is not stated and noted that SCOTUS found Miranda IMPLIED . . .  you also mentioned a "common sense interpretation of the wording of the 5th Amendment . .  how can there be any "interpretation" without judicial review.  By the way, people differ on what is and is not "common sense," including about what you seem to paint as an absolute right to remain silent even though those words are not in the Constitution. Well, SCOTUS disagrees with you:

http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf

Now, did you want to take up my challenge? Or, just explain what your view is on judicial review?
: July 18, 2013, 12:39:32 PM VinBucFan

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spartan

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#159 : July 18, 2013, 01:27:24 PM


It is a dumb example because it is wrong. Section 8: The Congress shall have Power To...provide for the common Defence....To raise and support Armies...

The Air Force is an army that uses different vehicles than the regular army and the Constitution states "armies" PLURAL


Or is it? Ironic that Vin should bring this up, but the 2nd Amendment doesn't mention semi-automatic rifles, handguns or high capacity magazines either, and according to some that is proof they weren't supposed to be included.

CalcuttaRain

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#160 : July 18, 2013, 01:56:41 PM


It is a dumb example because it is wrong. Section 8: The Congress shall have Power To...provide for the common Defence....To raise and support Armies...

The Air Force is an army that uses different vehicles than the regular army and the Constitution states "armies" PLURAL


Or is it? Ironic that Vin should bring this up, but the 2nd Amendment doesn't mention semi-automatic rifles, handguns or high capacity magazines either, and according to some that is proof they weren't supposed to be included.

that is an interesting example of why the judicial review argument is an interesting academic discussion, but really almost nonsense in the real world. You and JG? are discussing differing views of what the words mean. . . .

The thing some leave out, is that constitutional challenges are generaly the result of competing parties litigating competeing interests, so someone has to be the final arbiter.  Your gun example illustrates this because there is sure to be a lot of litigation over the next few years on the actual SCOPE of the "right to bear arms."  It is easy -- almost to the point of being a truism -- to say we have a RIGHT to bear arms, but what does that mean, what is the SCOPE of that right can only be resolved through legislation or judicial review, sometimes both. For example, some state is going to pass a restriction similar to the DC ban, but slightly different. The NRA and gun groups will sue . . . so the courts will have to resolve the issue.Or, we could have another Sandy Hook that causes Congress to pass a very restrictive law, somebody has to define the scope of the right. If there is no "judical review" . . . . then what? (Notice no takers yet on my Brown hypothetical)

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#161 : July 19, 2013, 03:40:08 PM

The SC certainly has Judicial Review (Appellate) powers over those decisions made by lower courts. I think the issue though is that do the courts have Judicial Review powers over Congress other than judging if something is constitutional or not.

I started arguing  with CBW then realized we were talking about different things. Me appellate jurisdiction and him over laws made by congress. I think he is technically correct, but if the SC doesn't, who does? Does anybody even if they make really, really bad laws? I think to get around it the SC rather incorrectly surrounds judicial review under the cloak of constitutionality. This decision is a good example. It's "unconstitutional" to use old data? Really? Wrong?  perhaps, but unconstitutional?

I tend to think that nobody should have Judicial Review over Congress. Even if they make really sh*tty laws the "review" is you vote them out and change them.

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#162 : July 19, 2013, 05:52:03 PM

Not sure I follow. Other than a few areas where the Court has original jurisdiction how else would the Court review the constitutionality of a law than through appellate jurisdiction?

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#163 : July 21, 2013, 09:29:12 AM

Not sure I follow. Other than a few areas where the Court has original jurisdiction how else would the Court review the constitutionality of a law than through appellate jurisdiction?

My understanding is that the SC has Appellate Jurisdiction over ANY decision made by a lower court, be it a constitutional issue or not.

When it comes to actions by Congress, they always adjudicate if it is Constitutional or not Constitutional, never good law/bad law, right decision/wrong decision etc. Never on the pure merits of the act I guess is what I am saying, as John Roberts said in his support of Obamacare, it is not their job to protect the people from 'bad' law constructed by the representatives they voted for.

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#164 : July 21, 2013, 02:42:21 PM

Not sure I follow. Other than a few areas where the Court has original jurisdiction how else would the Court review the constitutionality of a law than through appellate jurisdiction?

My understanding is that the SC has Appellate Jurisdiction over ANY decision made by a lower court, be it a constitutional issue or not.

When it comes to actions by Congress, they always adjudicate if it is Constitutional or not Constitutional, never good law/bad law, right decision/wrong decision etc. Never on the pure merits of the act I guess is what I am saying, as John Roberts said in his support of Obamacare, it is not their job to protect the people from 'bad' law constructed by the representatives they voted for.

what you are describing is the very, very limited jurisdiction of the Supreme Court and another hole in the "judicial review" argument.  The courts that are most often adjudicating whether Congress has passed a constitutional law is not SCOTUS, its actually the lower courts, which are under Congressional control. I think SCOTUS gets 10-15,000 petitions a year and must hear less than 100. That is because SCOTUS not only has limited jurisdiction it has discretionary jurisdiction and very often passes on reviewing a decision.

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