ACLU losing members over their refusal to accept USSC's DC v. Heller decision

The original triad of czechs and balances was Senate-House-Executive, and the courts did not play a role in that system.

"Marbury changed EVERYTHING"
 
Thornicus said:
How come the Supreme Court can keep the Congress in check, but not the other way around? It would seem the public schools neglected to teach you about the three-point check system.

Show me in the Constitution where it designates SCOTUS as final arbiter.
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The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, ...
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Right there in the first sentence of Article III, section 2. All cases... "Arising under this constitution". It provides for the judicial branch to have authority in cases which arise "under this constitution" (ie: when a law's constitutionality is challenged), but also for the ability to challenge the constitutionality of a law. Without this, there would be no authority to turn to if a law's constitutionality is under question.

As for checks and balances, the executive branch and legislative branches check the authority of the court through the ability to appoint and confirm justices. That is why who is in control of the WH and congress holds such importance with regard to SCOTUS. The power to appoint those who hold to an agreed opinion to the meaning of the constitution is as important as any other power held by the President and Senate.

Theoretically the interpretation of the constitution by the judicial branch of government is supposed to be neutral with regard to any prevailing political philosophy. But as we all know, that does not hold true in practice. That is why the court could uphold things like "equal but separate" under one administration, then later over turn the concept under a subsequent administration.

The life time appointment is the factor that stabilizes the process, so previous decisions are not being re-examined every time the WH changes occupants.
 
Thornicus said:
Where does it say that in the Constitution?

I agree with their recent decision to uphold the 2nd Amendment. However, Congress could have rightly done so themselves by passing a law to enforce it. There is nothing in the Constitution which designates the SCOTUS as the final arbiter in Constitutional cases. Jefferson viewed that is tyranny, and I am inclined to agree.
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Where does it say that? Are you kidding me? Read article III, Section I.... Also read that they have the power to decide Constitutionality of Laws and Executive Acts.

Jefferson argued against giving them that power, but he lost. Many of the framers feared the power of the courts, but not all of them.
 
I really think it should be a long term (like 16 years) instead of a life term. There's no reason presidents should be incentivized to appoint younger and younger members.
 
Damocles said:
Where does it say that? Are you kidding me? Read article III, Section I.... Also read that they have the power to decide Constitutionality of Laws and Executive Acts.

Jefferson argued against giving them that power, but he lost. Many of the framers feared the power of the courts, but not all of them.
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Yes, this is one thing I disagree with Jefferson about. The courts aren't perfect but they are better than nothing.
 
Damocles said:
Where does it say that? Are you kidding me? Read article III, Section I.... Also read that they have the power to decide Constitutionality of Laws and Executive Acts.

Jefferson argued against giving them that power, but he lost. Many of the framers feared the power of the courts, but not all of them.
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The question isn't whether the SCOTUS has the authority to decide whether a law is Constitutional. The question is whether or not the SCOTUS is the final arbiter in Constitutional cases. Clearly, the Constitution grants them no such power.
 
Watermark said:
He was implying that they didn't interpret the constitution. They do, and they can do it however they want to. They can even disagree with the supreme court. Imagine that. The supreme court may have the final say but that's irrelevant to what Epicurus was criticizing them for.
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They, the ACLU, can also lose all their smart members and be left with n othing but idiots like you.

BTW, how's community college going?
 
Thornicus said:
The question isn't whether the SCOTUS has the authority to decide whether a law is Constitutional. The question is whether or not the SCOTUS is the final arbiter in Constitutional cases. Clearly, the Constitution grants them no such power.
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What authority would be final? The judicial branch of government is given the authority to determine constitutionality. The Supreme Court of the United States is the highest court in the land, and is the last available in the long process of appeals.

Again, look to Section 2 of Article III:
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 appellate Jurisdiction
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By assigning appellate jurisdiction to the Supreme Court, it give the court authority over lesser courts. That is the definition of the appeals process.

When the appellate jurisdiction of the Supreme Court is combined with Section 1 of Article III:
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...
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then it is very clear that the Supreme Court is designed as final authority in judicial matters. Since cases "arising under this constitution" are under judicial jurisdiction, and the Supreme Court is the fianl authority in the judicial system, as defined in Article III, then the Supreme Court of the United States is, therefore, the final authority in all cases "arising under this constitution".

While the wording is not as readily apparent as "the right of the people to keep and bear arms shall not be infringed", the wording of Article III, granting authority, hierarchy, and process does, indeed, assign such authority to the Supreme Court.
 
Good Luck said:
What authority would be final? The judicial branch of government is given the authority to determine constitutionality. The Supreme Court of the United States is the highest court in the land, and is the last available in the long process of appeals.

Again, look to Section 2 of Article III:


By assigning appellate jurisdiction to the Supreme Court, it give the court authority over lesser courts. That is the definition of the appeals process.

When the appellate jurisdiction of the Supreme Court is combined with Section 1 of Article III:

then it is very clear that the Supreme Court is designed as final authority in judicial matters. Since cases "arising under this constitution" are under judicial jurisdiction, and the Supreme Court is the fianl authority in the judicial system, as defined in Article III, then the Supreme Court of the United States is, therefore, the final authority in all cases "arising under this constitution".

While the wording is not as readily apparent as "the right of the people to keep and bear arms shall not be infringed", the wording of Article III, granting authority, hierarchy, and process does, indeed, assign such authority to the Supreme Court.
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If that is indeed the case, Good Luck, then why did it take 16 years for the Supreme Court to claim such authority? Furthermore, why was that decision (Marbury v. Madison) so very controversial?

I agree with Jefferson's take on the issue.

"The Constitution ... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." (Thomas Jefferson to Abigail Adams, 1804. ME 11:51)

When the Supreme Court "strikes down" a law, their decision applies only to the case at hand, with stare decisis setting a precedent for future cases. In that regard, the Supreme Court is the final arbiter. However, the execute branch could still very well continue to enforce a questionable law. I believe Andrew Jackson did precisely that?
 
Thornicus said:
If that is indeed the case, Good Luck, then why did it take 16 years for the Supreme Court to claim such authority? Furthermore, why was that decision (Marbury v. Madison) so very controversial?

I agree with Jefferson's take on the issue.

"The Constitution ... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." (Thomas Jefferson to Abigail Adams, 1804. ME 11:51)
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16 years is not very long when it comes to ironing out the intricacies of the Constitution of the United States. Seems we are still hammering out what means what to whom.

Why is (almost) any SCOTUS decision controversial - at least at the time it is made? Because there are those who disagree with the outcome. If there were no disagreements about application of law under the limits of the Constitution, there would be no cases taken to SCOTUS in the first place.

Thornicus said:
When the Supreme Court "strikes down" a law, their decision applies only to the case at hand, with stare decisis setting a precedent for future cases. In that regard, the Supreme Court is the final arbiter. However, the execute branch could still very well continue to enforce a questionable law. I believe Andrew Jackson did precisely that?
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This is absolutely the case.

In ANY decision of SCOTUS, the decision does not under any circumstances, directly, or even indirectly repeal a law. Even with the recent Heller decision, the gun control laws of D.C. have not been automatically repealed. If D.C. authorities were to choose to do so, they could continue to enforce the laws, and arrest those in violation of the law. The lower courts could even, if they wanted to, continue to prosecute violations of the gun bans.

But setting precedent in a case type does have authority in that those involved know what would happen to future cases if they were appealed to the Supreme Court again. As such, the lower courts will not continue to allow prosecution of cases under the current laws, because having too many cases overturned tends to result in losing one's job, and possibly one's license to practice law.

So, the DA's and CA's are not going to prosecute cases under the current law, because trying to do so will end up pissing off the judges, thus endangering their careers. Nor will the police enforce the laws, because pissing of DA's and CA's is none too good for their careers.

Nor will the local politicians continue to encourage enforcement of their laws, because that, too, tends to threaten their jobs.


The situation is not perfect by any means. But I ask you: if the judicial system were not to have authority over constitutionality (ie: cases "arising from this contitution") who can one appeal to if they question the constitutionality of a law? The lawmakers? They WROTE the law under question. The executive branch? They most likely SIGNED the law (unless they had a veto over ridden...) and do not have the authority to change laws, only sign or refuse to sign new bills into law. The authority was plainly granted to the judicial system.

And if SCOTUS is not the final authority in the judicial system, then who is? The only authority granted the other two branches over the judicial system is the power of appointment and confirmation. If you can point to an authority higher than SCOTUS, then by all means, do so.
 
IMHO, it's just not a good idea to have a fully elected branch deal with constitutional issues. Civil liberties arising from the constitution may at times become unpopular but the government should only be able to override them by amending the constitution.
 
Thornicus said:
The question isn't whether the SCOTUS has the authority to decide whether a law is Constitutional. The question is whether or not the SCOTUS is the final arbiter in Constitutional cases. Clearly, the Constitution grants them no such power.
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Total rubbish. They are the arbiter, the only check left after a decision is either replacement and revisit (re-arbiting) or Amendment (changing it so that they cannot justify a future decision in that manner).

They are the highest court and no other court can be made above them and the last power that rules on the constitutionality of things (not just laws), as empowered by the constitution.

It is preposterous to pretend that any other court has a higher power when deciding if laws are constitutional. Read the document, take a civics class.

While they don't repeal laws, they strike the government's power to enforce them because they are unconstitutional.

It is just stupid to pretend that they are not the final arbiter of the constitutionality of laws.

One of the checks, they don't get to just decide willy-nilly, somebody must bring the case.

Another check, jurisdictional authority of the legislature.

Another, Amendment.

Lastly, Impeachment.

None of those take from the court the power to rule on the constitutionality of issues. That is given by the Constitution itself.
 
Watermark said:
IMHO, it's just not a good idea to have a fully elected branch deal with constitutional issues. Civil liberties arising from the constitution may at times become unpopular but the government should only be able to override them by amending the constitution.
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Total foolishness (agreeing here). You cannot have them solely dependent on votes. That leads to direct democracy as they will be playing to the people who will vote for them rather than ruling on the law as written.
 
Damocles said:
Total foolishness (agreeing here). You cannot have them solely dependent on votes. That leads to direct democracy as they will be playing to the people who will vote for them rather than ruling on the law as written.
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Actually, direct democracy would be the best system. Full referendum on all issues. Representative democracy is a joke, because legislators do what they damn well please, regardless of what they say they will do.

Pure populism is an ideal state.
 
AssHatZombie said:
Actually, direct democracy would be the best system. Full referendum on all issues. Representative democracy is a joke, because legislators do what they damn well please, regardless of what they say they will do.

Pure populism is an ideal state.
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A direct democracy might work in some places. But when we get worked up about 50% turning out to vote, a direct democracy would be a joke.

Besides, a direct democracy is not always the best idea. From the time of the Boston Tea Party until well after we won the Revolutionary War, the majority of people never wanted the war or independence.
 
AssHatZombie said:
Actually, direct democracy would be the best system. Full referendum on all issues. Representative democracy is a joke, because legislators do what they damn well please, regardless of what they say they will do.

Pure populism is an ideal state.
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It would not, freedom does not lie in the tyranny of the majority. Freedom lies in my ability, and my right, to live within society as a minority.

The ultimate minority is the individual, who deserves every protection given them by our Constitution and every protection from the government's overwhelming ability to oppress, especially by the majority rules system.
 
The advantage of democracy is that at least the majority cannot be oppressed. Also, as I've said before, there usually isn't a majority on every issue, as American society is a complex coalition, and it's usually sympathetic to the minorities because of this. But the last check, whenever all of that fails, and the people are acting as a sociopathic hive-mind, is individual rights. These should be protected by a branch of government that's mostly independent. If it were elected democratically the hive-mind would, of course, just tell them to ignore individual rights.

One instance of the terrible effects of a sociopathic hive-mind can be found in the American south. Jacksonian democracy had swept the south in the 1830's, and all branches were elected. So whenever the 1870's came around the whites managed to seize power, and that last check wasn't there to protect the blacks, because the hive-mind of oppression just elected judges that were racist also. The federal supreme court unfortunately at that time practiced extreme judicial restraint and held that the bill of rights didn't apply to state issues. So, basically, blacks were fucked for another one-hundred years.
 
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