Poll: Do you respect the Supreme Court?

JG,

That is essentially Clinton's point I noted earlier, that Congress had violated the separation of powers between it and the federal courts. However, the power to void a statute is precisely what Hamilton argued in Fed 78.

 

I don't know that Marbury confirmed that power. JG raises a good point, as did Clinton, that that decision was about drawing a separation of powers line. I think that the power preceded Marbury.

 

Exactly! There are many that believe that whatever Congress does must be legal because they make the laws, but the founders thought otherwise. They created certain powers and responsibilities in the Constitution for Congress, when Congress ever tries to cross the line and take powers and responsibilities that are not given to them by the Constitution, then it's the responsibility of the other two branches of government to use the proper checks and balances to keep Congress in line.

Isn't it amazing how easy it is to understand the Constitution when you study it from the point of view of the orignial framers of the Constitution. Hamilton and the others who fought to give us our Constitution understood how important a proper understanding of this Constitution is for the survival of our Constitutional Republic! I quoted Hamilton earlier today in another thread:

http://www.baptistboard.com/ubb/ultimatebb.php/topic/18/3968/2.html#000019

 

So you think a proper interpretation would limit the congress to striking down laws in which the congress is taking on powers not given it by the constitution. But it would not allow them to strike down ordinary and mundane laws that are not dealing with the power of congress. But just by a quick read of Federalist, it seems Madison would give the court the power to interpret a law hot of the presses in a way different than the congress intended, even if they just wrote it and it was fresh in their mind. They can tell congress what congress said even thought congress is the one saying it.

 

The Bible teaches us in Romans 13 that we are to obey those that are set in authority over us.

We also read in Acts 5:29 that, 'We ought to obey God rather than man'.

My stance is that we obey man's laws until they go against God's Word. Then we ignore the law.

For instance. If God's word tells us to preach against abortion yet the law of the supreme court says if you preach against abortion you will face jail and get your preaching license taken away, we are not to fear what man can do to us. We are to preach the Word.

 

OK, From The Right, I am going to bed, it seems you dropped my education for the night

 

G' mornin', Bunyon. Actually, I was up, but wasn't sure if your last question was directed to me or JGrubbs as the position you asked about seemed more in line with his than my position. I believe that the Supreme Court has the authority under the Constitution to declare any national or state law (Supremacy Clause) unconstitutional. Now, whether they are correct or not is an entirely different question. Their authority doesn't give them omniscience, as they seem to think.

Now, the Federalist Paper I pointed to was 78, by Hamilton, but you mentioned Madison. Is there one by him to look at on this issue? I suspect you probably meant Hamilton, though. Yes, I believe that interpreting a law is one of the undisputed duties of the judicial branch. Misinterpreting it to pursue an agenda, however, is wrong, though.

Ya know, it's intriguing to me that folks like you, JGrubbs, and me can all be committed to originalism (of one variety or another) but have different understandings and interpretations. That doesn't point to the invalidity of originalism as some might argue, only the necessity of the intellectual and juridical undertaking to find out what the proper interpretation is.

 

In actuality, the colonists of the late 1770's were considered fully british in all aspects. Many of us were taught that Paul Revere said "the British are coming!". But that is untrue, because it would have made no sense to the colonists, who were british themselves. Revere said either "The regulars are coming (regulars were the redcoat soldiers)" or "the redcoats are coming".

The colonists generally respected England. But they disagreed with her. They broke from England not out of lack of respect, but as a last resort, and with a heavy heart.

That's simply untrue. Abortion was legal prior to RvW. I've never ever seen a single post on this board that ever accused states prior to RvW of murdering unborn children.

Again, I respect SCOTUS, as I do all three branched of government. But I do not always (and often, do not) agree with them.

Others here agree with that view, yet it appears only I am getting kicked in the shins for it. Odd.

 

But, John, you keep coming back for more.

 

That's simply untrue. Abortion was legal prior to RvW. </font>[/QUOTE]Abortion was legal in a very few states. Roe v Wade made it legal in all states.

 

Oh, that's what I'm doing wrong.

 

Not exactly. Most states had laws placing restrictions on abortions to one extent or another. Few states had laws banning abortions outright.

Yes, and no.

Under RvW, a woman and her doctor may freely decide to terminate a pregnancy during the first trimester.

However, states may still restrict abortion access after the first trimester with laws intended to protect the woman's health.

Roe requires that abortions after fetal viability must be available if the woman's health or life are at risk. In all other situations, state governments can prohibit and/or otherwise limit abortions.

 

Not exactly. Most states had laws placing restrictions on abortions to one extent or another. Few states had laws banning abortions outright.

Yes, and no.

Under RvW, a woman and her doctor may freely decide to terminate a pregnancy during the first trimester.

However, states may still restrict abortion access after the first trimester with laws intended to protect the woman's health.

Roe requires that abortions after fetal viability must be available if the woman's health or life are at risk. In all other situations, state governments can prohibit and/or otherwise limit abortions. </font>[/QUOTE]You are living in a dream world. Where do you think Partial Birth Abortions came from? The Federal Courts or the Supreme Court have struck down every law that limits abortion!

 

Not exactly. Most states had laws placing restrictions on abortions to one extent or another. Few states had laws banning abortions outright.

Yes, and no.

Under RvW, a woman and her doctor may freely decide to terminate a pregnancy during the first trimester.

However, states may still restrict abortion access after the first trimester with laws intended to protect the woman's health.

Roe requires that abortions after fetal viability must be available if the woman's health or life are at risk. In all other situations, state governments can prohibit and/or otherwise limit abortions. </font>[/QUOTE]By 1910, every state except Kentucky had passed an anti-abortion law (and Kentucky's courts had declared abortion at any stage of gestation to be illegal).

By 1967, not much had changed. In 49 states, abortion was a felony; in New Jersey, it was a high misdemeanor. Furthermore, 29 states banned abortion advertising, and many outlawed the manufacture or distribution of abortifacients.

http://www.ewtn.com/library/PROLIFE/LIFBFROE.TXT

 

"Ya know, it's intriguing to me that folks like you, JGrubbs, and me can all be committed to originalism (of one variety or another) but have different understandings and interpretations. That doesn't point to the invalidity of originalism as some might argue, only the necessity of the intellectual and juridical undertaking to find out what the proper interpretation is."-------------------------------------------------------------------------------

Don't include me in that list, FTR. I am not read up on it enough to say my interpretation is accurate. I just know what others have said. I guess I really need to take the time one day and read the primary sources.

But you did not answer my question. Why, in your opinion did Hamilton want to give the court such power, while Jefferson saw that much power as a knife to the throat of the republic?

I guess Hamilton did not realize that we could end up with a two party 50/50 situation in the senate that would paralyze them to ever impeach a Judge.

 

Bunyon,

Don't include me in that list, FTR. I am not read up on it enough to say my interpretation is accurate.

I don't think it takes a lot of study to understand the importance, to the durability of the Constitution and this Republic, of commitment to the Founders' vision of government and rights. The study only helps one look a little deeper.

But you did not answer my question. Why, in your opinion did Hamilton want to give the court such power, while Jefferson saw that much power as a knife to the throat of the republic?

I wouldn't characterize as you did. I don't think that Hamilton gave the Court such power, but rather the Constitution that did so, Hamilton simply explained it. Such power in a high court was not unique in English history. As to Jefferson's opinion, I don't think it's authoritative. First of all, he wasn't at the Federal Convention, but rather in France. Nor was he at the Virginia ratification convention. Also, as a counter to him, I would add a letter from his close friend, James Madison, to Jefferson:

I guess Hamilton did not realize that we could end up with a two party 50/50 situation in the senate that would paralyze them to ever impeach a Judge.

I don't think it's paralysis. I think it is simply that a judge's decision doesn't constitute a high crime or misdemeanor and, if not, that they lack the political will. Not a fault of the design.

 

So are we saying that for all practical purposes the constitution is whatever the SCOTUS say it is.

It seems to me that the power is not really balanced. If the court has the absolute right to determine constitutionality then I don't see how it can ever really be held in check. (unless one party or the other had a solid majority) For instance, the massachusetts supreme court (i think it was Massachusetts) basically told the legislature that it had to come up with a way for gays to have unions. I fear that the only thing that could ever stop the scotus from becoming an Oligarchy is the Judges commitment to being strict constructionist. Without that commitment, I seems that their is a real danger of Jefferson's fear coming to pass.

I have got to read up, what basic primer do you recommend.

 

Not at all. I'm saying that SCOTUS has that power, but I would not at all conclude that what they say is necessarily correct as to the meaning of the Constitution.

Hamilton did argue that the impeachment power is a check. Some argue that the exceptions clause (Art. III, Sec. 2, Clause 2: "...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.") is another check. I disagree and have debated this in at least one previous thread.

Primer? I don't know, but to me, the first two things that anyone seeking to understand the Constitution should read are Madison's Notes of the Federal Convention and The Federalist Papers.

Some contemporary sources I would recommend are:

A Matter of Interpretation by Justice Scalia

The Tempting of America by Robert Bork

The Rise of Modern Judicial Review by Christopher Wolfe

I think it's good to read collections of various writings during the time of the ratification of the Constitution. One of the best is the two-volume Debate on the Constitution published by Library of America. Liberty Fund (www.libertyfund.org) has some excellent stuff. Also, it's important to read not just works by Federalists but also anti-Federalists, since it was the interplay between the two that gave us the document we have.

 

"Not at all. I'm saying that SCOTUS has that power, but I would not at all conclude that what they say is necessarily correct as to the meaning of the Constitution."---------------------------------------------------------------------

I did understand that, which is why I said "for all practical purposes. I don't think it was meant to be that way, but is this what has happened?

I have read two of Bork's books, "slouching towards Gomorrah" and another one I can't remember the title to.

I'll print this and begin my education. Thanks.