The Supreme Court's misinterpretations of the constitution
The Most powerful us court has been for the centuries inventing up words in the constitution or saying this means this, but it is not. First is the judicial review, now this is not anywhere mentioned in the constitution or agreed upon nature of the court to have. What they have is interpret laws and if they interpret a law unconstitutional, than since the constitution is the law over the three branches of government and states. Than by nature it would not be valid. Now interpret means the point of a meaning from a set ranged. Like you can not say 2-1=1 is pineapple. You are limited to the meaning and context agreed upon a sentence or combination of such.
The commerce clause is a notorious lie the courts invented where they said the federal government, starting in Wickard v. Filburn, saying what may affect interstate state is within the power of regulation of the federal government. This is false because when when you say you have power to do y, than that doesn't mean you can have power of x. It says " to regulate commerce among foreign nation and among the several states and with the Indian tribes". This is not that difficult because commerce at the time meant transfer or exchange of goods and the wording puts in where the feds control it between foreign nations ,states and the Indians. No where does it say what affects it because that is no different from applying that reasoning to the words that Congress can control businesses in other countries because it affects commerce among the nations. If you look at the history the courts have said no to this multiple times but because Roosevelt wanted to pack the court they decided to keep this ruling or risk the federal government infighting for more power because of the depression.
The commerce clause is a notorious lie the courts invented where they said the federal government, starting in Wickard v. Filburn, saying what may affect interstate state is within the power of regulation of the federal government. This is false because when when you say you have power to do y, than that doesn't mean you can have power of x. It says " to regulate commerce among foreign nation and among the several states and with the Indian tribes". This is not that difficult because commerce at the time meant transfer or exchange of goods and the wording puts in where the feds control it between foreign nations ,states and the Indians. No where does it say what affects it because that is no different from applying that reasoning to the words that Congress can control businesses in other countries because it affects commerce among the nations. If you look at the history the courts have said no to this multiple times but because Roosevelt wanted to pack the court they decided to keep this ruling or risk the federal government infighting for more power because of the depression.
Comments (37)
Constitutions are not "sacred" documents like the Ten Commandments--carved in stone and handed down from heaven and valid forever. They are working documents designed to address the perceived problems of establishing government at a given time. If the 13 states had been static -- never changing -- the constitution would never have needed amending. The original 13 were dynamic, and more states were added. The economy grew along with the population, and the country became more complicated. New, unanticipated problems arose snd required resolution in the courts, because that is where people took their problems to be resolved. Not only have circumstances changed, but the commonly understood meaning of terms changes over time, as well.
My guess is that you would like to see an all-around smaller, less involved federal government. Maybe you feel that way about state, county, and city governments as well. Right? Does the phrase "Get government off our backs" ring any bells for you?
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5153&context=flr
Implicit in this kind or originalism is the notion that there was some uniform agreement on the meaning of the terms, or separation of powers in the constitution at the time it was written. This is wrong and comes from an oversimplification of history or very selective reading of a small number of historical documents. The constitution requires interpretation and the Supreme Court is the branch of government with the duty to do so. It also requires reinterpretation as the society and culture that the constitution serves "we the people" changes. The constitution is not, and should not be a dead letter document confined to the conditions and understandings of the 18th century.
To Prothero, the intent of the forefathers is not the constitution is suppose to be interpreted. There were many compromises and ideals that each of them had but they agreed upon the document in its wording today so we are to interpret it in such. They disagreed over whether the bank was constitutional not what the constitution meant. Hamilton said that this was necessary and proper in order for America to deal with its debt and Jefferson said that this was just unfounded power and overreach if government. The constitution was not in discussion but whether the bank fit the pre existing powers. That matter is left to a superior judge to say which is based upon the agreed upon meaning of the powers of Congress. To better better understand let me give you a semi-analogy. You have 5 kilos as the based judgement and and another object which you are trying to figure out if it is more or less. If more than you buy the object, not you do not. The 5 kilo is bot in dispute, just the object and it's true weight. Only relevant historical documents like dictionaries, debate on the language if the law and context is the basis in getting a very set interpretation. Not preside because human language is not as precise as it goes and may have a few implication. But back to my earlier post saying non of the actual cases relating to the commerce clause is based on the words. They made it up with no basis in text with language and context. Also reinterpretation is not valid for as I said earlier that interpretation is the range of meaning a sentence may put. It has to exist by the allowance of such language at its use and context. Also the constitution serves as the basic structure of the government and rule of law which this is a republic and not democracy where people rule. The relationship between of Federal to state to common people is described and the best argument against it serves the people is an amendment could come and nullify any protections of the people and have a dictatorship. Possible is all the state legislature were unanimously working together and started a state convention make and ratify such an amendment by themselves. Lastly, is the constitution is not dead because it was never living . In reality if a majority of people stopped following it, it would not be able change anything or effect any one of us. AND THE CONSTITUTION has been changed 27 times already and can keep changing only under the rules itself sets.
But let me ask you: Would you be in support of calling a constitutional convention in the next few years (it would take a few years to call one, most likely)? And, if you were in favor of calling a constitutional convention, what kind of constitutional document would you like to see?
How much of the existing constitution would you like to keep, and how much would you want to get rid of?
I for one, would like to have it clearly spelled out that CORPORATIONS ARE NOT PERSONS , in any sense, and CAN NEVER BE TREATED AS A PERSON. This would be to address the SCOTUS very very bad CITIZENS UNITED decision.
I have, however, noticed that the people who raise these arguments typically claim that the US Constitution is only legit if it is interpreted as the founder's intended. As if we can ever figure that out? Even a single founder, like Madison, changed his opinion at least twice, on the issue of central banking. So, it's Impossible to figure out what any single founder would have thought of a modern application of the Constitution, much less what they all thought --- they often agreed to compromises. Furthermore, very, very, very few Americans would want to live in a country that the founders created. The founders were against women voting, colored people voting, and poor white men voting. They also did not even trust rich white men with the power to elect the US president, which is why the electoral college was invented. They also cared little for freedom of religion and freedom of speech, as the First Amendment did not limit the states from enacting state churches and sending people to prison for blasphemy laws. The First Amendment was finally applied to the states through the due process clause of the 14th Amendment, in the late 1940s.
Many of the rights and freedoms we take for granted today, especially minority rights, would have been against the beliefs of the founders. I'm glad the US Supreme Court does interpret the US Constitution to keep up with the times and not to promote ancient fallacies, borrowing some language from Justice Black.
https://www.youtube.com/watch?v=VGKgJdW55nc
That is a very important point in constitutional discussions. On your point above - that does not mean the founders thought one way or the other it - it just meant they thought it was a matter to be decided by the state, not the federal government. This was, and continues to be a major constitutional issue.
For example, if say the SCOTUS overturned Roe v wade, that does not mean they decided that abortion would be illegal - it would just return it to the states to decide on a state by state basis.
There has been, in many conservative or "originallists" minds, an over reach on the interpretation of the 14th amendment as a means to legislate from the bench, avoiding all that messy legislative stuff.
How does this language relate to same sex marriage?
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
I see room for both sides of the issue in this language.
No question that the OP was slop, but generously interpreting it, there was some truth to it. His initial point did make the point that the Constitution itself never provided that the Supreme Court was meant as a Constitutional Court, empowered with the ability to strike down laws as unconstitutional. They decided they had that power in 1803 in Marbury Madison. https://en.wikipedia.org/wiki/Marbury_v._Madison. The notion that a court has the power to strike down democratically passed laws is not universally accepted in Western nations today (the Dutch provide their courts no such power and the Finns have a legislative committee evaluate for Constitutionality for example). Jefferson was staunchly opposed to allowing the Court that much power:
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." http://www.answers.com/Q/What_did_Thomas_Jefferson_say_about_judicial_review.Quoting Bitter Crank
And the counter to this position, again quoting Jefferson, "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
What you have done is just what you argued against, which is to make the Constitution sacred in the sense that what it is said to say is the highest law of the land, untouchable by democratic effort. The Justices, under this model, are vested with the power to say what the Constitution says, giving them the power of the gods, to decree what the law that 100s of millions of Americans must live under. Unless you impose some rule that restrains the Justices (like limiting their interpretation to original intent or some other rule), then the Justices can in fact twist and shape their interpretation however they please.
The Kavanaugh fight is evidence of the absurdly powerful role the Court plays in American society, with the left trying to arrive at whatever way, democratic or not, to change the rules to select an all powerful Justice who will swing the Court. The speak of amending the Constitution to eliminate the electoral college so that Republicans can't elect Presidents who will choose Justices. They speak of eliminating equal Senators for each state so that the Senate will not be Republican. They speak of removing Republican Presidents and Republican selected judges through impeachment. The stakes are high and they want their person in power, which means to me that the Court simply has too much power and should never have embarked on its mission to set policy for the American people.
If the net result of this whole mess is that the Court lose it's reputation as being fair and honest, then I say all the better. It should never have been placed where it is, and the day the democracy can assert actual control over the law of the land, all the better.
What is the point of comparing the US to any other nation? In some respects it's unique. The US has the oldest constitution in the world, some would say because the Supreme Court interprets it anew for each generation. Becoming rigid about interpretation, which is what I believe you favor, is a recipe for crisis and rejection of the constitution. Does that sound like a better idea to you?
The Kavanaugh drama is not about a problematic court. It's about an issue that genuinely divides Americans with strong feelings on both sides.
Quoting Hanover
You don't have to respond, but I honestly don't see how you derived your conclusion from what you quoted. I would think that calling the constitution "working documents designed to address the perceived problems of establishing government at a given time" was not making the constitution sacred.
I think we were taught in school to hold the constitution as a sacred document. Many years since, I think the constitution is not sacred, not perfect, and too difficult to amend.
The liberal Warren Court was in place for a long time -- especially if one was a conservative. Now we will have a conservative court in place for a long time (so it will seem to liberals). If we are going to change justices more often, (like give them one ten year term) then the scope of their jurisdiction needs to be much more limited.
Perhaps then we could get rid of the electoral college, winner take all states, closed primaries, lifetime tenures for the Supreme Court , states with 500,000 people having as much power in the Senate as states with 23 million people, voter disenfranchisement and creating "safe" districts for congressman through legislative gerrymandering (just a short wish list).
Things could be worse.
What would happen then if, say, a Democratic Congress and President were to pass a law that banned private gun ownership? Without the Supreme Court ruling that it conflicts with the Second Amendment, will the new law just have to stand (until a Republican Congress and President repeat it)?
Hitler specifically held the American approach up as a model in Mein Kampf.
This is the kind of power the Supreme Court has.
I'm not entirely opposed to the Court having some authority to evaluate the Constitutionality of legislation, but in doing so, there has to be some self-imposed restraint or you can in fact have Justices decreeing law from the bench. A Constitution can be upheld without an all powerful Court as well, by making it part of the process for legislatures to evaluate the Constitutionality before passage of the law.
What I can say is that the process we have in the US appears terribly flawed, where the Court is placed in the center of the political process, supposedly representing a wisdom beyond the grasp of the democracy.
An interesting idea that I noted when reading about other countries' processes is in making the Supreme Court reach all its decisions unanimously, without providing any avenue for dissent. They would then act like juries, being forced to sit in a small room arguing until they reached a unanimous and often compromised decision. If they hung, I guess the law would be upheld.
Democracy has a tendency to come up with malignant legislation. The Court is a two-edged sword. It can intervene to protect Americans, and it can also intervene to cement a wrong idea and turn it into a standard (as they did with eugenics).
People have differing ideas about what constitutes protection of rights and society. That would be a reason to leave it to democracy.
On the other hand, if at some point in the future, the US was lurching toward insanity and the only thing standing in the way was the Court, I would not rob future Americans of that one possibility for doing the right thing. Flawed as it is, it should be left the way it is.
The US government wasn't setup to be a simple democracy. It is a constitutional republic of states where the Senate represents the states, and POTUS is elected by the electoral college.
A lot of people are unhappy with that arrangement now, wishing for a more representative form of the actual population. But that's not what was intended by the framers of the constitution.
If today we find the Electoral College and Senate to be too undemocratic, they can be done away with via constitutional amendments, if the states agreed to go along with that. Problem being that states are still a fundamental unit of organization in the US.
But what's the alternative to this? Each generation gets to form a new government and make their own laws?
Quoting LD Saunders
Which hasn't necessarily demonstrated that humans are wiser.
Quoting LD Saunders
Knew less about what, though? How best to balance power in government? What sort of democracy is workable? Do we know better now? Yes, we know a lot more about science and technology than they did. But do we know better how to govern? I suppose the grand experiment has played itself out for a couple centuries in multiple countries now, so maybe there are some better examples to take from?