Lawlessness is still lawlessness even when long established.
Better the chaos of the Paleocons than the order of the so-called progressives.
I donât believe sneak is arguing with you. Theyâve been using âprecedentâ as an end run around the Constitution for several years. Many of their decisions are based off their own former rulings which were based on their other former rulings rather than the Constitution.
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I didnât think he was either, but how do you say that without sounding like youâre debating?
Well itâs Sneak and it wasnât in the form of a question. Anyone else thoughâŚ
Damn the SCOTUS. I donât have a better system. The pols shouldnât try to pass laws that are unConstitutional.
PreciselyâŚitâs why libs but more important status quo see Textualism and Originalism as a threat to that status.
True, but precedent if an important legal concept. Without it, rulings would be subject to wild swings in Opinion each time a similar issue comes before the Court.
Only if the precedent is aligned with the Constitution.
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Bingo. Precedent based solely on former rulings that were not based on the Constitution are why we have BAD precedent.
Here we get to the fundamental breech of faith in the Modern Court.
Contrary to the way it has been used the ruling of Marbury v Madison should be the single greatest piece of Kyrptonite the modern Court could face and that is on account of several different aspects of the opinion but here I will just mention one: the original right to make Law that Marshall referenced.
Now, it should be too plain to even have to argue the point that since there is both a ratification process mentioned as well as an amendment process mentioned that it was and is in these that this original right to make Law is properly exercised.
At issue is the ultimate Sovereign over the Law itself, for the Sovereign has the ability to make and dispose of Law. Under the British crown, even to this very day, the Sovereign is in the king or queen. Convention may seem to have stripped the Crown of this right but it is only a convention. This is why certain ministers and judges serving the Crown may still make Law, through common law, for they represent (ultimately) the Sovereign and have their power delegated to them from him or her.
But the federal Constitution is a form of enabling act that gives leave to it to exist at all for specific purposes and ends and no more. This is why we do not have a federal common law because the federal does not actually contain among its members a Sovereign able to make fundamental Law by the ordinary means at its disposal, be that legislation or executive orders or opinions of the Court. All acts of the departments of the federal must be, or at least they should be, pursuant to the Constitution if they are to be thought lawful at all.
Clearly the Court cannot make crap up as they go along as they have done if there is an original right and they actually, as is the case, play no part in ANY exercise of it.
Iâm not exaggerating: the federal bench including the Court itself has no role whatsoever in the mentioned ratification or amendment processes.
It has utterly no claim on the original right that Marshall wrote of.
And so the modern Court behaves exactly as one would expect if there had never been an original right in the first place. If they do not recognize the original right, if as what Marshall described as permanent principals so enacted can be reduced to the mere appearance of words on paper, so that there never were permanent principals, then they may do as they please. The Congress or a President may likewise do as they will suffer them to do.
Arbitrary government is simply the government remaking itself to do as it please in the moment. It was lawful for the Crown to do this and to avoid it the Founding Fathers and then the Framers created a system of advise and consent where they did not retain the right of consent.
This is why Iâve pointed out that Alexander Hamilton, though he was a Framer, was not the Sovereign to change the Law when he, after Ratification and while serving in the government established by the Constitution boldly contradicted what he and others had said about A1:S8:C1 before Ratification. The so-called Hamiltonian view is constitutionally spurious and those who Ratified the Law did so accepting the view now artificially attributed to just Madison to the point that one FDR era hack Justice called this mere tautology.
Even the Antifederalists, in opposing the language of the Constitution, demonstrate by their casting the abuses and misconstruction of the language as such show that they understood what Madison and the rest were saying (and for his part Hamilton wrote a defense of the absolute nature of the doctrine of delegated powers that he would assert the further adoption of a Bill of Rights would be dangerous, as it could undermine such).
But if Hamilton can up and revise the Law on a whim, then so can they.
It isnât that they think that Hamilton was the Sovereign, just that they reject the Sovereignty of those who lawfully act on the original right.
No original right, no permanent principals, no Law ⌠only conventionalities like their opinions and whatever the government is presently doing, has gotten away with doing, or may try to get away with next.
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The modern Court acts like theyâve build a tower of jurisprudence but really all they have done is to hang a shoddily built bridge of supposition out over the Abyss of Arbitrary government.
I agree. Iâve been saying for years the Constitution does not give the SCOTUS the right to âinterpretâ law. They arenât legislators. The ruling in Marbury v. Madison which set the precedent that opened the door for interpretation was unconstitutional. Itâs not the job of the SCOTUS to interpret. If any part of a law is found to be Unconstitutional, the entire law is supposed to be stricken and then it would be up to Congress to fix it. Instead we have the SCOTUS either outright going against the intent of the legislators or trying to fix bad legislation, neither of which was ever supposed to be their function.
This is another reason why we have so many laws on the books, laws that arenât being enforced.
Alexander Hamilton can kiss my ass.
Well, get yourself appointed to the Supreme Court and you will be in position to make that call.
Actually, Marbury did NOT do that though it has been used that way. The Court has misconstructed Marbury like much else.
In Marbury we find Marshall discuss at length the previous example of when the Court had found an act of Congress to be not pursuant to the Constitution.
This prior example was not âinterpretingâ the Constitution as the modern Court does.
As for Marbury, there comes a point at which Marshall shifts away from discussing things like past review of statute and if William Marbury deserved his writ of Mandamus to actually addressing the real issue before the Court when he wrote to the effect of this is the plain case for giving the Mandamus and what now needs to be considered is if it can be issued from this Court.
But Marshall does not subsequently go on about interpreting the Law, rather everything he wrote can be better viewed as the demand for fidelity to the Law and it is in that context that he brings up the original right and permanent principals so established.
When you finally cut to the chase, the justification for reviewing statutory laws is only tolerable because the Oath of Office that they take is one that requires fidelity.
It is worse than a solemn mockery to require Justices to take such an oath but then make them close their eyes to the Constitution and see only statutes because then their fidelity would be to the statutes rather than the Law.
Thus Marshall would be better described as saying that the obligation of the Court is to agree with the Constitution and thus âreviewâ is striving to agree with its peculiar to itself character, not interpret words in a vacuum emptied of anything besides the Courtâs own opinions as the modern Court has done.
I would also point out that others in other departments take the same oath.
So if it is worse than a solemn mockery to require them to take such an oath to turn a blind eye to the Constitution and see only statutes then what is it to require them to take such an oath to turn a blind eye to the Constitution and see only the opinions of the Court?
Your beef is not really Marshall or Marbury but with the misrepresentation and corruption of them. It is the misconstructed Marbury that is unconstitutional, that presents a âpower to interpretâ called Judicial Review that is the sole property of the Court.
But an obligation to be faithful to the Law is a very different thing than a power to interpret. For one how is an obligation to be faithful somehow a license to infidelity?
As Paul wrote in another context: Shall we continue in sin, that grace may abound?
Marbury, the real Marbury and not the Fake News, C.C Langdellized Marbury which the so-called âprogressivesâ depend upon (they were 5th Column liars from their beginning) is your friend. We need to reclaim it from them! It is a weapon to use against them and not their ally.
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The main beef I have is that instead of being a check on the other two branches as was originally intended, the SCOTUS has abused their âinterpretâ power to become their own legislative branch. When you have the chief justice literally redefining words in the law as written (tax vs. penalty) expressly going against the intent of the writers of that law (well this is what they really meant) how is that anything other than legislating from the bench? (We donât like the law as written so we have decided it will say this going forward instead.)
I hope you realize that Roberts did us a favor. It was because of his ruling that the Republicans were able to eliminate the penalty tax by simply writing it out of existence when they passed the tax revision bill in 2017. With that penalty gone, the ACA will slowly self destruct and there is really nothing the Democrats can do about it ⌠at least for the next few years.
Had Roberts not done that and as a result, the whole act been ruled unconstitutional, the Republicans would have been in the awkward position of having to come up with a replacement, a task at which, I am positive they would have failed miserably. Now, at least, there is time to pick up the pieces and try to fix them one by one as they slowly fall off of the ACA.
No he cannot. He is dead.
Why would they have had to come up with a replacement if the whole thing had been ruled unconstitutional from the start? That makes no sense. Roberts had the opportunity to kill the law in its infancy. Now that the law has been allowed to stand for several years, there are parts of it that will be hard if not impossible to reverse.
Weak assed response and you know it.