Why is the Supreme Court the Arbiter of the Constitution?

[osan]

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

Our legal system is shit. 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.

 

[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.

 

[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.

 

[Teenager For Ron Paul]

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

 

[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."

 

[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; and
• the 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.

 

[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.

 

[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.



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



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



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.



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.



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.



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.



And they fail at it miserably in virtually every case.

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.

 

[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.

 

[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?

 

[John Liberty]

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

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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 horseshit on stilts.

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.

 

[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_case?case=12120372216939101759

but that pretense was shown false in:

http://scholar.google.com/scholar_case?case=16234924501041992561

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_case?case=15348771758421925949

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_case?case=3310311558104547583

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

 

[Sonny Tufts]

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

http://scholar.google.com/scholar_case?case=12120372216939101759

but that pretense was shown false in:

http://scholar.google.com/scholar_case?case=16234924501041992561

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.

 

[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/showth...Constitution&p=5222869&viewfull=1#post5222869)

 

[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.

 

[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?

 

[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/showth...Constitution&p=5222869&viewfull=1#post5222869