# Think Tank > U.S. Constitution >  Ok.....need some big gun help from you of the more informed

## Intoxiklown

This is a moderator from a gun rights site who is also a lawyer (I know). Any advice, points, ect to put this guy who says our entire government and our rights are at the whim of who happens to sit on a court bench in place are greatly appreciated:



*Intox said: ↑

    ....The Supreme Court is a product of the Constitution, and as such has no power to re-write the Constitution at a whim. They are bound to it, and any ruling they issue that conflicts with it is null and void.....* _(Yes, I stole this quote....lol)_

That is your fundamental misunderstanding and makes all your subsequent claims legally pointless.

There is simply no one to decide that a Supreme Court decision is "null and void." Whatever, the Supreme Court decides in the context of the case at bar will be put into effect and affect the lives and property of real people in the real world. Strutting around braying that the Court's decision is "null and void" will change nothing. As Justice Robert Jackson pointed out, referring to the Supreme Court:

    We are not final because we are infallible, but we are infallible only because we are final.

You might find that philosophically unsatisfying, but it is simple reality.

And who would decide that a ruling by the Supreme Court conflicts with the Constitution? Is that your call? You might have an opinion, but what about someone else's opinion which conflicts with yours. And each of you might have your respective authorities to point to and your logical arguments to support your respective positions. Who would decide which of you is correct? According to the Founding Fathers, as provided in Article III, Sections 1 and 2 of the Constitution, it would be the province of the Supreme Court to decide.

And again, the decisions on matters of law of courts affect the lives and property of real people in the real world. Your opinions on matters of law do not (nor do all the quotes of Founding Fathers and others affect the lives and property of real people in the real world). And even the Founding Fathers would challenge your view here:

    Hamilton in Federalist No. 78:

        ....If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....


    And Madison in Federalist No. 39:

        ....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

And not the Constitution, nor any law, is self executing. Laws are tools used by courts to decide matters. The meaning and utility of laws comes from their use by courts for that purpose.

The reality is that our Constitution has served as a governing document of this republic for over 200 years. We've survived a panoply of travails, including civil war, economic ups and downs, an assortment of lousy elected officials, and some really lousy laws (like Prohibition) -- and yet we endure.

The judiciary, as other branches of government, is still subject to checks and balances. So if a judge's decision is unsatisfactory, the ball might well be in the court of the legislature.

It's not the proper role of a court to decide if the result is good or bad. It's the job of a court to apply the the law and applicable precedent to decide the case. It can sometimes be argued that in a given case the law was not properly applied, or the result of applying the law and precedent can in fact be unsatisfactory to some. We could think that a law is a bad idea or bad public policy, and that law could be entirely within the power of Congress to enact and perfectly constitutional. Being constitutional does not guarantee that a law is a good thing.

I often cite the case of Kelo v. City of New London, 545 U.S. 469 (2005) as an example of this phenomenon. It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result. "Checks and balances" at work.

There is also the possibility of amending the Constitution. That's a difficult thing to do, and the Founding Fathers set things up that way. But if can be done, and has been done, when the consequences of a Supreme Court ruling are sufficiently unsatisfactory.

Perhaps the clearest, and most unhappy, example is the income tax. In 1895 the Supreme Court ruled in Pollock v. Farmers Loan & Trust Co. ( 157 U.S. 429 (1895) ; 158 U.S. 601 (1895)) that the Constitution did not give the federal government the power to levy a tax on income. But national solvency was a significant concern that the Sixteenth Amendment was adopted.

So no, a ruling of the Supreme Court that you, or someone else, thinks conflicts with the Constitution is not "null and void."

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## phill4paul

I can't find fault in his summary. The judiciary was one of the worst creations of the CONstitution. It started out the weakest body but quickly grew to power under Madison. What use is a document when 9 clowns in gowns can re-interpret it in anyway they choose? There are no checks and balances from either the legislative or the executive on the judiciary. If the judiciary determined that the original intent of the sentence "The sky is blue" means "The sky is green" then the sky is indeed green.  In the words of former Justice Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the judges say it is."

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## Intoxiklown

> I can't find fault in his summary. The judiciary was one of the worst creations of the CONstitution. It started out the weakest body but quickly grew to power under Madison. What use is a document when 9 clowns in gowns can re-interpret it in anyway they choose? There are no checks and balances from either the legislative or the executive on the judiciary. If the judiciary determined that the original intent of the sentence "The sky is blue" means "The sky is green" then the sky is indeed green.  In the words of former Justice Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the judges say it is."


Wouldn't Madison's assertion from his Report of 1800 clarify the court's realm to a degree though?

"However true therefore it may be that the Judicial Department, is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts" - Madison

Or is he speaking to state government rather than individuals?

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## phill4paul

> Wouldn't Madison's assertion from his Report of 1800 clarify the court's realm to a degree though?
> 
> "However true therefore it may be that the Judicial Department, is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts" - Madison
> 
> Or is he speaking to state government rather than individuals?


  Clarification. It was the court under Marshall. The case was Maybury vs. Madison. I'm sorry, but I'm typing on the fly after working today and have to get to the family gathering. I don't know that  will have much time to explore this. Hopefully another RPF'er can chime in.

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## Swordsmyth

*Article III (Article 3 - Judicial)**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.



Congress should be impeaching Judges who violate the Constitution but they have never once done so.

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## timosman

> Congress should be impeaching Judges who violate the Constitution but they have never once done so.


Congress is mostly interested in avoiding responsibility and is willing to cede power to either of the other two branches of the government. Look, we have elections every other year so how about you guys take care of it? This way the sheep will not blame us when it is time for them to cast votes.

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## Swordsmyth

> Congress is mostly interested in avoiding responsibility and is willing to cede power to either of the other two branches of the government. Look, we have elections every other year so how about you guys take care of it? This way the sheep will not blame us when it is time for them to cast votes.


One of the worst features of our system is the ability to shift blame, the sheep fall for it every time, everyone hates Congress but loves their Congressman.

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## timosman

> One of the worst features of our system is the ability to shift blame, the sheep fall for it every time, everyone hates Congress but loves their Congressman.


At this point the congress has effectively shifted all of their responsibilities to the other branches of the government. What is the point of their existence? Allowing you to vent off when you are frustrated? Their jobs should be removed and outsourced to an answering service - 1-900-CONGRESS only $4.95 per minute billed in 1 second increments. First 10 seconds free.

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## Intoxiklown

> Clarification. It was the court under Marshall. The case was Maybury vs. Madison. I'm sorry, but I'm typing on the fly after working today and have to get to the family gathering. I don't know that  will have much time to explore this. Hopefully another RPF'er can chime in.


I gave rep, but just wanted to actually say thank you for helping to educate me some.

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## Intoxiklown

> At this point the congress has effectively shifted all of their responsibilities to the other branches of the government. What is the point of their existence? Allowing you to vent off when you are frustrated? Their jobs should be removed and outsourced to an answering service - 1-900-CONGRESS only $4.95 per minute billed in 1 second increments. First 10 seconds free.


LOL

I'm sorry, but this was funny. I mean to the point of funny that I actually could see one of those old school late night TV 900 number commercials for "young hot girls want to talk", but for Congress.

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## Intoxiklown

> *Article III (Article 3 - Judicial)**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.
> 
> 
> 
> Congress should be impeaching Judges who violate the Constitution but they have never once done so.


Gotta spread, or I would have had to have +Rep'ed that for getting straight to the root cause of a problem

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## kcchiefs6465

It becomes a lot easier to dispute what he is babbling about when you lose the Constitutional argument. He is a legal positivist. Rights do not come from the Constitution. Rights were attempted to be outlined within the Constitution, specifically the Bill of Rights. 'Congress shall make no law abridging _the_ Freedom of speech.' The framers are acknowledging that Rights preceded the Constitution. He believes that Rights come from the majority or the plurality and are subject to change with the times.

The Constitution has either authorized the government we have or has been powerless to defend against it.

I have a moral Right to defend myself. Period.

That is regardless of what laws a given majority decide to enforce or what Constitution I'm born under.

Their immoral and positivist laws are null and void because they are kangaroos. I don't dance on command. Realistically if more people openly or subtly nullified their decisions would be effectively worthless. Which insofar as I am concerned, any law in opposition to freedom IS null and void.

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## Superfluous Man

Question:

When the states declared their independence from the British crown, who then occupied the position over all American law that this lawyer believes the Supreme court now occupies?

And when the signers of the Declaration of Independence strutted and brayed that that regime's rulings were null and void, did it have an effect?




> As Justice Robert Jackson pointed out, referring to the Supreme Court:
> 
> We are not final because we are infallible, but we are infallible only because we are final.


Another way of saying this is, "What the Supreme Court says is infallible. We know this because the Supreme Court says so."

Hopefully this lawyer can see the vicious circularity of this claim.

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## Superfluous Man

But really, where you get off on the wrong foot is by treating the Constitution itself as legitimate in the first place.

Whatever can be said against the legal authority of the Supreme Court can also be said against the legal authority of the Constitution for similar reasons.

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## Superfluous Man

It's odd that this interlocutor quoted Federalist 78. He was deceptively selective in that. I suspect he must know it. The quote he gives doesn't really support his position. On the other hand, there's much else in the same paper that totally contradicts it. I would present quotes, but it would be better to read it in its entirety.

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## fedupinmo

The Supreme Court is bound to rule according to the Law... so what law is that? The Constitution is presented to be the Supreme Law of the land, along with any federal statutes that are legitimately passed _in Pursuance thereof_.
Now, since all power that the Supreme Court can exercise stems from the Constitutional grant of power that creates it, how can it have the power to supersede it? What law would it derive that power from and be legitimate in that exercise?
Expecting a lawyer to be honest about this is really a stretch though...

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## timosman

> The Supreme Court is bound to rule according to the Law... so what law is that? The Constitution is presented to be the Supreme Law of the land, along with any federal statutes that are legitimately passed _in Pursuance thereof_.
> Now, since all power that the Supreme Court can exercise stems from the Constitutional grant of power that creates it, how can it have the power to supersede it? What law would it derive that power from and be legitimate in that exercise?
> Expecting a lawyer to be honest about this is really a stretch though...


Just shut up and let us tell you what you are supposed to think.

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## NorthCarolinaLiberty

Many things are not _null and void_ because jury nullification fell out of favor.

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## thoughtomator

The Supreme Court isn't final. Congress may impeach them. It only LOOKS final because Congress has been all but completely emasculated by corruption.

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## NorthCarolinaLiberty

> This is a moderator from a gun rights site:
> There is simply no one to decide that a Supreme Court decision is "null and void."


Well, I knew this guy was BS from the start.  When in doubt, go the 10th Amendment Center:  





> *The Myth of Marbury v Madison
> *
> Theory Colloquium Series seeks to clear up the myths associated with the Marbury decision. In the first sentence of his 2004 paper, “The Irrepressible Myth of Marbury,” Michael Stokes Paulsen sets the mood for the rest: Nearly all of American constitutional law today rests on a myth.
> 
>     “A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison the Supreme Court of the United States created the doctrine of ‘judicial review.’ Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.”
> 
> This myth, he continues, allows the Supreme Court to dictate what the Constitution means via “opinions,” i.e. ex cathedra pronouncements. Though those rulings are supposed to be binding and create a firm precedent, this doesn’t stop them from being overruled by future courts.
> 
> “Nearly every feature of the myth is wrong,” Paulsen writes. “For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified.”
> ...

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## NorthCarolinaLiberty

> moderator from a gun rights site: So no, a ruling of the Supreme Court that you, or someone else, thinks conflicts with the Constitution is not "null and void."



And, most notable, is that this guy is disagreeing with Chief Justice
Marshall himself, who said:




> "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
> https://www.ourdocuments.gov/doc.php...age=transcript

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## Anti Federalist

He's right.

And he quotes the Federalist to make his case.

And this is one reason, of many, *why* the Anti Federalists were opposed to the counter coup and CONstitution of 1787.

While the bill of rights has helped stave off the final extinguishing of liberty in AmeriKa, at the end of the day, it is nothing more than a goddamned piece of paper, to quote Shrub.

Rights, and who defines their exercise and existence, is decided by who has the most guns.

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## Anti Federalist

He's right.

And he quotes the Federalist to make his case.

And this is one reason, of many, *why* the Anti Federalists were opposed to the counter coup and CONstitution of 1787.

While the bill of rights has helped stave off the final extinguishing of liberty in AmeriKa, at the end of the day, it is nothing more than a goddamned piece of paper, to quote Shrub.

Rights, and who defines their exercise and existence, is decided by who has the most guns.

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## Sonny Tufts

> What use is a document when 9 clowns in gowns can re-interpret it in anyway they choose? There are no checks and balances from either the legislative or the executive on the judiciary.


To the  contrary, there are several.  Congress can limit the appellate jurisdiction of the Court.  It can gut its budget.  The President can refuse to enforce its decrees.  The Constitution doesn't specify the number of Justices, so if Congress and the President don't like a particular decision they can appoint additional justices to overturn it when a similar case arises in the future (which is what FDR's court-packing plan was all about, although the Senate refused to go along).

In extreme cases the states can amend the Constitution to overturn a SCOTUS decision, although this has happened only three times.

The problem is that some political body needs to have the authority to determine constitutional issues.  If you're going to allow state nullification, then you're gutting not only the 14th Amendment and the Bill of Rights in the state but also specific prohibitions on state action in the Constitution ("We don't care that SCOTUS says our law amounts to a bill of attainder, and we hereby nullify its decision.").  If Congress gets to be the judge of the constitutionality of its own enactments then the Bill of Rights is worthless nation-wide.

To those who think Congress should impeach members of the Court who, _in the opinion of Congress_, have violated the Constitution, consider a hypothetical federal  ban on private firearm ownership that is overturned by a 9-0 SCOTUS decision.  The entire court gets impeached, right?  

Be careful what you ask for; you just might get it.

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## Swordsmyth

> To the  contrary, there are several.  Congress can limit the appellate jurisdiction of the Court.  It can gut its budget.  The President can refuse to enforce its decrees.  The Constitution doesn't specify the number of Justices, so if Congress and the President don't like a particular decision they can appoint additional justices to overturn it when a similar case arises in the future (which is what FDR's court-packing plan was all about, although the Senate refused to go along).
> 
> In extreme cases the states can amend the Constitution to overturn a SCOTUS decision, although this has happened only three times.


All options that have been under-utilized.




> The problem is that some political body needs to have the authority to determine constitutional issues.  If you're going to allow state nullification, then you're gutting not only the 14th Amendment and the Bill of Rights in the state but also specific prohibitions on state action in the Constitution ("We don't care that SCOTUS says our law amounts to a bill of attainder, and we hereby nullify its decision.").  If Congress gets to be the judge of the constitutionality of its own enactments then the Bill of Rights is worthless nation-wide.


Nullification is only valid in support of the Constitution, if a state attempts to violate the Constitution it should be expelled or suppressed depending on it's population's support for the violation.




> To those who think Congress should impeach members of the Court who, _in the opinion of Congress_, have violated the Constitution, consider a hypothetical federal  ban on private firearm ownership that is overturned by a 9-0 SCOTUS decision.  The entire court gets impeached, right?  
> 
> Be careful what you ask for; you just might get it.


It might have brought things to a head and sparked a 2nd revolution before the frog was slowly boiled to death, the checks and balances system acts as a thermostat to keep the pot from heating too fast.

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## Sonny Tufts

> Nullification is only valid in support of the Constitution, if a state attempts to violate the Constitution it should be expelled or suppressed depending on it's population's support for the violation.


But who's to decide if a State has violated the Constitution?  If a State has the right to nullify a SCOTUS decision it doesn't like, it certainly has the right to nullify one that says the State has violated the Constitution.  Did Kansas have the right to nullify the ruling that its segregated public schools violated the 14th Amendment?

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## Swordsmyth

> But who's to decide if a State has violated the Constitution?  If a State has the right to nullify a SCOTUS decision it doesn't like, it certainly has the right to nullify one that says the State has violated the Constitution.  Did Kansas have the right to nullify the ruling that its segregated public schools violated the 14th Amendment?


You are correct that at some point our entire system rests on voluntary or involuntary submission, that is why I said the state should either be expelled or suppressed.
All political power proceeds out of the barrel of a gun, that is why the 2ndA is so important and why the states never should have let their militias be federalized and atrophied.

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