# Think Tank > U.S. Constitution >  Why is the Supreme Court the Arbiter of the Constitution?

## Teenager For Ron Paul

Yeah, yeah, I know Marbury v. Madison "gave" them that power but it's odd to me that the SCOTUS, in a case, could say "Oh, by the way, we can say what the Constitution means." What justifies this, legally, morally, and constitutionally? I know in the Federalist Papers Hamilton/Madison said the SCOTUS ought to decide what the law means, but I still don't understand how you could fully justify it in any objective or "semi-objective" manner. Is it wrong for them to have this power?

Some help on understanding this would be appreciated.

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## fisharmor

Article 3 sections 1 and 2 pretty much spell it out.




> *Section 1*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.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
> *Section 2*1:  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;_10_   --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.
> 2:  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 appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
> 3:  The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.




IANAL but I'd be interested in hearing whether there's a legal-snake difference between the judicial power of the United States being vested in SCOTUS, and the fact that all crimes are to be tried by jury, and whether or not rights violations are considered crimes.

So if SCOTUS is deciding what is a rights violation and what isn't, it seems to me that they are deciding on criminal cases and unconstitutionally denying the parties a jury trial.

Just another way our current system doesn't quite logically fit together.

Or, it could be what I've strongly suspected for years now: that no constitutionalist has a coherent legal theory they're working from, it all boils down to the guy with the biggest stick making the rules, and constitutionalism is horse$#@! on stilts.

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## Teenager For Ron Paul

After reading that section of the constitution, I still think the idea that the SCOTUS can say what the constitution means is on shaky ground.

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## Zippyjuan

The Constution is a specific document only where it comes to powers- who has the power for what. What does the Senate do and who is elgible to be a Senator for example.  But issues are not usually black and white as to what is or isn't allowed- even under the Constitution- so they have to decide what if any part of it applies to any case presented to them. Things which are not specifically spelled out must be "intrepreted". 

Rights for example are deliniated in the Bill of Rights.  What about when those rights come into conflict?  Which is the more important? Are the rights absolute? Can you yell "fire!" in a crowded movie theater as an old example?  Where do the lines get drawn?  The Supreme Court attempts to draw those lines (and the lines may shift over time).

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## Weston White

It is simply the underlying theory behind the balance of powers; really, but a reciprocatory power.  The courts posses the enforcement arm of that power.  Which is to mean that if the people dislike the courts findings, they can call upon their representatives to ratify or amend new legislation to reverse the courts effect.  As well if they people dislike an enacted public law they may seek redress or mandamus through adjudication, including jury nullification.  A few varying examples include: voting (poll) taxes, separate but equal; prohibition, the Sixteenth Amendment, womens rights, the definition of marriage, etc.

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## heavenlyboy34

> Article 3 sections 1 and 2 pretty much spell it out.
> 
> [/FONT][/COLOR]
> 
> IANAL but I'd be interested in hearing whether there's a legal-snake difference between the judicial power of the United States being vested in SCOTUS, and the fact that all crimes are to be tried by jury, and whether or not rights violations are considered crimes.
> 
> So if SCOTUS is deciding what is a rights violation and what isn't, it seems to me that they are deciding on criminal cases and unconstitutionally denying the parties a jury trial.
> 
> Just another way our current system doesn't quite logically fit together.
> ...


This^^

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## tommyrp12

> Article 3 sections 1 and 2 pretty much spell it out.
> 
> [/FONT][/COLOR]
> 
> IANAL but I'd be interested in hearing whether there's a legal-snake difference between the judicial power of the United States being vested in SCOTUS, and the fact that all crimes are to be tried by jury, and whether or not rights violations are considered crimes.
> 
> So if SCOTUS is deciding what is a rights violation and what isn't, it seems to me that they are deciding on criminal cases and unconstitutionally denying the parties a jury trial.
> 
> Just another way our current system doesn't quite logically fit together.
> ...


 Nail on head .

the constitution is a trust. its between criminals and its for them and their posterity. so the result is a de facto government.  

Dr. Dale Livingston - The True Deal With Judges

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## heavenlyboy34

> Article 3 sections 1 and 2 pretty much spell it out.
> 
> [/FONT][/COLOR]
> 
> IANAL but I'd be interested in hearing whether there's a legal-snake difference between the judicial power of the United States being vested in SCOTUS, and the fact that all crimes are to be tried by jury, and whether or not rights violations are considered crimes.
> 
> So if SCOTUS is deciding what is a rights violation and what isn't, it seems to me that they are deciding on criminal cases and unconstitutionally denying the parties a jury trial.
> 
> Just another way our current system doesn't quite logically fit together.
> ...


+rep

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## Acala

I think the real problem comes from the idea that the SCOTUS has the last word on what the Constitution means for everyone.  Nowhere in the Constitution is it suggested that, for example, the President can or must act contrary to the terms of the Constitution just because the SCOTUS says he can.  On the contrary, every officer of the US Government is under a duty to follow the Constitution no matter what the SCOTUS or any other officer says or does.  

Furthermore, the acts of the SCOTUS are themselves void if they are not in compliance with the terms of the Constitution.  What does that mean as a practical matter?  It means nullification and secession.  If the Federal government exceeds its powers, its acts are void and not binding on the states or the people no matter what the SCOTUS says.

The SCOTUS is not the final word.  I think it is absurd on its face to think that the Founders, concerned as they were about runaway government power, would determine that the Federal government should have the last word on the limits of its own power.

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## Occam's Banana

> Yeah, yeah, I know Marbury v. Madison "gave" them that power but it's odd to me that the SCOTUS, in a case, could say "Oh, by the way, we can say what the Constitution means."


What is "odd" about it? That is exactly the sort of thing that all governments have always done (and always will do).

And "odd" or not, that is nevertheless exactly what they did in this particular case.




> What justifies this, legally, morally, and constitutionally?


Nothing justifies it.




> I know in the Federalist Papers Hamilton/Madison said the SCOTUS ought to decide what the law means, but I still don't understand how you could fully justify it in any objective or "semi-objective" manner.


That is because it cannot be justified in such a manner.




> Is it wrong for them to have this power?


Yes.

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## Christian Liberty

> +rep


You guys do realize Ron is a Constitutionalist, right?

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## ClydeCoulter

> You guys do realize Ron is a Constitutionalist, right?


Which means he's not among those that would just use a big stick to do what they want, but he's in the minority (within the gov and among the people)

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## GunnyFreedom

> You guys do realize Ron is a Constitutionalist, right?


Yeah, Ron and I are just incoherent, didn't you know?

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## Pericles

> I think the real problem comes from the idea that the SCOTUS has the last word on what the Constitution means for everyone.  Nowhere in the Constitution is it suggested that, for example, the President can or must act contrary to the terms of the Constitution just because the SCOTUS says he can.  On the contrary, every officer of the US Government is under a duty to follow the Constitution no matter what the SCOTUS or any other officer says or does.  
> 
> Furthermore, the acts of the SCOTUS are themselves void if they are not in compliance with the terms of the Constitution.  What does that mean as a practical matter?  It means nullification and secession.  If the Federal government exceeds its powers, its acts are void and not binding on the states or the people no matter what the SCOTUS says.
> 
> The SCOTUS is not the final word.  I think it is absurd on its face to think that the Founders, concerned as they were about runaway government power, would determine that the Federal government should have the last word on the limits of its own power.


That ^ the power to overturn a law that exceeded authority granted under the Constitution was distributed - (A) the SCOTUS could overturn an unconstitutional law (B) a majority of the states could overturn an unconstitutional federal law - the meaning of "Laws of the United States which shall be made in Pursuance thereof" could also be judged by the states as articulated in the Kentucky and Virginia resoultion (C) the people themselves acting via state governments or the last and ultimate check on government power via the militias.

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## Carson

_"Why is the Supreme Court the Arbiter of the Constitution?"_

Are they?

I'm thinking you all are the interpreters of the Constitution for *yourselves*. 

Only when a problem arises may they ever have a say. I can't imagine ever having enough money to argue an opinion of mine up to the point to get them involved. Every step through the system now will be against a criminal organization with unlimited counterfeit.

It'd take a miracle. Or a fool for a client.

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## heavenlyboy34

> You guys do realize Ron is a Constitutionalist, right?


And a dialectician and rhetorician.   RP's Constitutionalism is just a rhetorical tool he uses in debate and in house procedures.  I don't have links handy, but if he were here he would admit that the document has a number of inherent flaws.

ETA: See also the RP quotes in my sig

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## heavenlyboy34

> Yeah, Ron and I are just incoherent, didn't you know?


Inconsistent, but only occasionally incoherent.

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## Carson

Juror trumps Supreme Court.

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## GunnyFreedom

> Inconsistent, but only occasionally incoherent.

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## osan

> Yeah, yeah, I know Marbury v. Madison "gave" them that power but it's odd to me that the SCOTUS, in a case, could say "Oh, by the way, we can say what the Constitution means." What justifies this, legally, morally, and constitutionally? I know in the Federalist Papers Hamilton/Madison said the SCOTUS ought to decide what the law means, but I still don't understand how you could fully justify it in any objective or "semi-objective" manner. Is it wrong for them to have this power?
> 
> Some help on understanding this would be appreciated.


Nobody GAVE them anything in any direct sense - they SEIZED the power and nobody stood tall and shot every stinking one of those pricks, which is what should have happened.

There is nothing fancy to understand.  In my consulting work I do just this sort of thing as did the SCOTUS.  I walk into the board room, whip out my nuts and heft them onto the table and wait to see if anyone challenges it with a larger pair.  If not, I know I am the de-facto boss and proceed.  Otherwise, I negotiate my way up - always up, mind you. 


People savvy in the ways of power know you never ask permission - you act.  99 times out of 98 you will get away with it and once the precedent is set the inertia that results is invariably too great to overcome at a cost people are willing to pony up, so they step down and the world continues to turn.

Hamilton was a statist punk whose ears I'd box back in a heartbeat, were I able to go back in time.  They'd have to invent the Porter Power just to get my foot out of his ass.

Madison, really, isn't that much better as he was a federalist.  I don't give a $#@! how pretty his  written hand was, and I have an unusually strong appreciation for such skills, he was dead wrong and if I could go back in time I'd slap the taste out of _his_ mouth as well.  I might just shoot most of the lot of them and put Patrick Henry in charge because he and Sam Adams were by far the best of the bunch, though George Mason had his good points as well.  Even Jefferson was a $#@!-up as president taking good ideas (.e. Louisiana Purchase) and implementing them poorly (taxpayer funded with no benefit to anyone who paid).

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## osan

> Just another way our current system doesn't quite logically fit together.


Our legal system is $#@!.  There are good elements there - presumption of innocence and all that - but as a whole it is complete crap as demonstrated by the current state of affairs and the horrid circumstances that befall anyone getting sucked into it.  Our system is corrupt beyond ready description and should be dismantled in toto and replaced.  For example, I would allow no plea bargains.  Any hint of it and everyone goes to jail long enough to make them never even consider it again.  Judge?  Never less than five judges presiding over a trial and every ruling must be by 4/5 majority consensus when in the favor of prosecution and 2/5 when in favor of the defense.  And the list goes on, almost without end.

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## osan

> The Constution is a specific document only where it comes to powers


Not so - it is VERY specific where rights are concerned.  "Shall not be infringed" is unequivocal.




> - who has the power for what.


The role of SCOTUS is not well specified.  It is given in airy-fairy generalities that stand as emaciated walking skeletons with no meat on their bones.




> But issues are not usually black and white as to what is or isn't allowed


Which is why the document is weak and needs replacing by something better, such as the constitution I wrote 25 years ago.




> so they have to decide what if any part of it applies to any case presented to them.


Further evidence of the document's inadequacies, particularly in the face of corruption, in which we are now awash to the edge of drowning.




> Things which are not specifically spelled out must be "intrepreted".


I might disagree with this.  Those not spelled out are NOT within the enumerated powers, period.




> What about when those rights come into conflict?


A legitimate question, but the question does not address frequency of legitimate conflicts v. non.  I would submit that the vast proportion of such cases are not legitimate - that no actual conflict of rights exists.  Man paints his house screaming hot pink, neighbor gets piss over it and sues.  Stoopid court people fail to see there is no conflict of rights because stoopid neighbor has no right not to be offended by screaming hot pink house color.  Case is heard and from there the painter's rights hang precariously by a thread, put there by those with no authority to so do.




> Are the rights absolute?


Rights are indeed absolute or they would not be _rights_, but merely suggestions to be ignored by whomever whenever it suited them.  This idiotic notion that a right is not absolute within the context of its existence is not just idiotic but so very dangerous to liberty.  My right to property trumps your need to take it from me.  I am therefore within my rights to kill you deader than stone if you insist on stealing the least item of mine - say, a pencil for example.  It may SEEM excessive, but where the naked principles are involved it is indeed very much proportional.




> Can you yell "fire!" in a crowded movie theater as an old example?


Horrid example, but to answer - yes.  Firstly, you should have asked "MAY you yell fire!".  It is obvious anyone with functioning vocal chords and brains CAN do it.  May we?  Certainly so.  Doing so is not a crime in se.  It becomes a crime only if the result is a criminal violation of the rights of another.  So if I yell fire and nothing happens, it might be the theater owner's prerogative to show me the door, but no crime has occurred and therefore I cannot be rightly charged.  If, OTOH, my utterance causes a stampede and someone is injured or killed, I may be held accountable for such a result.




> Where do the lines get drawn?


Almost always simply answered.  If no violation of the rights of others has occurred, no crime has occurred and you are within your right to act in the manner in question.  Given the right, however, it may not follow that it is a good idea to so act.  But acting in ways that may annoy others does not entitled them to charge you criminally.




> The Supreme Court attempts to draw those lines (and the lines may shift over time).


And they fail at it miserably in virtually every case.

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## better-dead-than-fed

> Yeah, yeah, I know Marbury v. Madison "gave" them that power but it's odd to me that the SCOTUS, in a case, could say "Oh, by the way, we can say what the Constitution means." What justifies this, legally, morally, and constitutionally? I know in the Federalist Papers Hamilton/Madison said the SCOTUS ought to decide what the law means, but I still don't understand how you could fully justify it in any objective or "semi-objective" manner. Is it wrong for them to have this power?
> 
> Some help on understanding this would be appreciated.


Whoever has the most guns decides what the law means.

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## Teenager For Ron Paul

Damn, you guys are harsh (in a good way.)

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## Carsten2012b

I had a question about that too once. I contacted Andrew Horning (Libertarian Senatorial Candidate here in Indiana) whom I met earlier this year and asked him about it. Here's his reply that he gave me.

"Yes, only legislators can write laws. Their meaning cannot be changed by courts, but their application to any particular case can be open to interpretation. This is because people go to a court to resolve a dispute. If there is a dispute over what a law means or how it applies (and the way laws are written so badly and profusely, it should happen even more than it does), then a court is the proper place to sort it out. That is where the interpretation takes place.

But...

People now assume that the resolution of that particular case brought before the court should have a legislating effect, ”settled law,” precedente, or stare decisis. This is from English common law. And there is mention of common law courts in constitutions. But the Supreme Court is constituted under the written, civil law of the constitutions, and may not operate under common law rules. This was actually affirmed in the Marbury v. Madison case, though with FDR’s “court packing” crime, that same decision was reinterpreted to mean the opposite! And most people have believed it since, because it’s great for politicians to have almighty unelected courts to take the heat of bad policy off their elected shoulders."

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## better-dead-than-fed

http://en.wikipedia.org/wiki/Judicial_review




> What justifies this, legally, morally, and constitutionally?


Arguably:
the lack of a viable alternative; andthe decision of the people not to overrule Marbury v. Madison, which they well could do via Article V.



> I know Marbury v. Madison "gave" them that power but it's odd to me that the SCOTUS, in a case, could say "Oh, by the way, we can say what the Constitution means."


SCOTUS justified it in the text of that opinion, using different words than you attribute to them, for what they're worth. I have never seen SCOTUS concerned with law, morality, or the constitution. Their concern seems to be publishing words to dissuade people from overthrowing the ruling regime; and since they have succeeded, you could say the ends justify the means.

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## Sonny Tufts

> I have never seen SCOTUS concerned with law, morality, or the constitution.  Their concern seems to be publishing words to dissuade people from overthrowing the ruling regime; and since they have succeeded, you could say the ends justify the means.


Then you haven't read many Supreme Court cases.  Why don't you start with Brown v. Board of Education, which was very much concerned with the Constitution and morality and which overturned the ruling regime that mandated racial segregation in the public schools.

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## AFPVet

> Not so - it is VERY specific where rights are concerned.  "Shall not be infringed" is unequivocal.
> 
> 
> 
> The role of SCOTUS is not well specified.  It is given in airy-fairy generalities that stand as emaciated walking skeletons with no meat on their bones.
> 
> 
> 
> *Which is why the document is weak and needs replacing by something better, such as the constitution I wrote 25 years ago.*
> ...


There are some who say that the Articles of Confederation was a better document... and in many ways, it was. In fact, the Constitution was supposed to only be a 'tweaked' version of the Articles... but we all know how that played out.

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## fisharmor

> Then you haven't read many Supreme Court  cases.  Why don't you start with Brown v. Board of Education, which was  very much concerned with the Constitution and morality and which  overturned the ruling regime that mandated racial segregation in the  public schools.


Read what he wrote more carefully.



> Their concern seems to be publishing words to *dissuade people* from overthrowing the ruling regime;


I don't see at all how Brown didn't do exactly that.

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## Sonny Tufts

> I don't see at all how Brown didn't do exactly that.


What is there in Brown that dissuaded people from overturning the existing regime of segregation?

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## John Liberty

> Article 3 sections 1 and 2 pretty much spell it out.
> 
> [/FONT][/COLOR]
> 
> IANAL but I'd be interested in hearing whether there's a legal-snake difference between the judicial power of the United States being vested in SCOTUS, and the fact that all crimes are to be tried by jury, and whether or not rights violations are considered crimes.
> 
> So if SCOTUS is deciding what is a rights violation and what isn't, it seems to me that they are deciding on criminal cases and unconstitutionally denying the parties a jury trial.
> 
> Just another way our current system doesn't quite logically fit together.
> ...


The Constitution blatantly gives legislative powers to the Congress, and only the congress. The left over powers are designated to the states. The Supreme Court is not, legally under the constitution, allowed to make laws. Sadly, while they don't make _laws_ per se, their rulings that "interpret" the constitution might as well be laws. Changing the meaning of the words in the constitution is no different than changing the words. Their job is to be presented with laws, and it is their job to rule if they are unconstitutional or constitutional. They are not supposed to set rulings that are treated like law.

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## better-dead-than-fed

> Brown v. Board of Education, which was very much concerned with the Constitution


Specifically, it pretended to be concerned with the Equal Protection Clause of the 14th Amendment.

http://scholar.google.com/scholar_ca...72216939101759

but that pretense was shown false in:

http://scholar.google.com/scholar_ca...24501041992561

In the latter case, segregation in D.C. schools was challenged, but D.C. is not in a State, so it is exempt from the Equal Protection Clause. There is no federal Equal Protection Clause. Instead of concerning themselves with the constitution (which allows Unequal Protection outside of the States), the court just went ahead and desegregated D.C. anyway.

The court recognizes the importance of "the _appearance_ of justice",

http://scholar.google.com/scholar_ca...71758421925949

and the importance of "public confidence". Public confidence is not required by law, morality, or the constitution; but it is the court's primary concern, because if a regime loses public confidence, it gets overthrown. When a lower court breaks the law, SCOTUS concerns itself with the "public reputation of judicial proceedings",

http://scholar.google.com/scholar_ca...11558104547583

and tends to condone governmental illegality so long as "public reputation" remains intact.

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## Sonny Tufts

> Specifically, it pretended to be concerned with the Equal Protection Clause of the 14th Amendment.
> 
> http://scholar.google.com/scholar_ca...72216939101759
> 
> but that pretense was shown false in:
> 
> http://scholar.google.com/scholar_ca...24501041992561
> 
> In the latter case, segregation in D.C. schools was challenged, but D.C. is not in a State, so it is exempt from the Equal Protection Clause. There is no federal Equal Protection Clause. Instead of concerning themselves with the constitution (which allows Unequal Protection outside of the States), the court just went ahead and desegregated D.C. anyway.


The fact that the Court read an equal protection element into the 5th Amendment in Bolling doesn't mean it was wrong in Brown, does it?  It simply means it may have been wrong in Bolling.

The rest of your citations hardly support the claim that the Court has _never_ concerned itself with law, morality, or the constitution.

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## better-dead-than-fed

> The fact that the Court read an equal protection element into the 5th Amendment in Bolling doesn't mean it was wrong in Brown, does it?  It simply means it may have been wrong in Bolling.


I'm not saying they're always wrong, just that they're never concerned with law, morality, or the constitution, as far as I have seen.




> Then you haven't read many Supreme Court cases.


?




> The rest of your citations hardly support the claim that the Court has _never_ concerned itself with law, morality, or the constitution.


Why do you suppose SCOTUS cares about the "appearance" of justice, and "public reputation"? (http://www.ronpaulforums.com/showthr...=1#post5222869)

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## awake

Your 3 branches of government were meant the check the tyrannical power of each other. The plan failed. Each would eventually usurp powers not granted by the people for their own selfish motives. The Constitution has failed to check the tyrannical tendencies of the US government, there is absolutely no question of this. Each branch helped itself to power grabs when it seen opportunity to do so. It bribed and favored the other two branches when it needed to as well.

The only check and balance is a libertarian/market approach to governance: no monopoly of security and defense provision.

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## Sonny Tufts

> I'm not saying they're always wrong, just that they're never concerned with law, morality, or the constitution, as far as I have seen.


So when the Court strikes down a state or federal statute as being unconstitutional, it's not concerned with the Constitution????  When it interprets a statute to determine whether it applies to a particular set of facts, it's not concerned with law????

Morality is a slippier matter.  Should the Court base its decisions on the Justices' notions of morality rather than the Constitution and the statutes?

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## better-dead-than-fed

> So when the Court strikes down a state or federal statute as being unconstitutional, it's not concerned with the Constitution????  When it interprets a statute to determine whether it applies to a particular set of facts, it's not concerned with law????


It is not so concerned as far as I have seen. Neither of us knows firsthand the thoughts of SCOTUS personnel, so all I can do is ask,




> Why do you suppose SCOTUS cares about the "appearance" of justice, and "public reputation"?
> 
> http://www.ronpaulforums.com/showthr...=1#post5222869

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