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SCOTUS
buffalobo
Member Posts: 2,348 ✭✭✭✭✭
Does the SCOTUS have the power to interpret the Constitution?
Comments
Post back up and have at it.
This is exactly what Heller case was all about in the law.
Now let's review the Prohibition days:
18th Amendemnt and the 21 st Amendment :
This is classic review of an Amendment for a study in creating a new amendment in the Bill of Rights. This did not eliminate any other amendment, but merely trumped legislation on a state level for the possession and consumption of alcohol. I have not seen any proposal to eliminate any amendment except the 21st Amendment which eliminated the 18th Amendment and the enforcement of it through the Volstead Act.
This is a classic study of why the Congress should be very wary of calling a Constitutional Convention to enact any new Amendments which eliminate another previous amendment in the BOR. It is highly unlikely this would ever happen.
What I see happening is state by state, city by city, legislation to restrict the rights to keep and bear arms as defined in the 2nd. For instance, after the Heller decision, Chicago merely made it more difficult to obtain permits to carry...Mass is the same way. NYC forget it.
This is where we need to concentrate on reform, the local level. Look at California, bad guys kills kids at school and no one is allowed to carry there. One person who was carrying could have stopped that nut. Gun free zones only allow open season for the bad guys!
What we need is to be vigilant agaiinst local power hungry political bosses. We need to stop:
The 2nd Amendment.......Void where prohibited by law...
This bullya has to be defeated!
the http://www.usconstitution.net/constam.html
No back up? Unsubstantiated responses only count as manure. Can you list article and section were this affirmative is noted?
quote:old-dog Posted - 04/04/2012 : 8:00:41 PM Short anser YES...This is what this branch of Gov't is for in our Constitution.
This is exactly what Heller case was all about in the law.
Now let's review the Prohibition days:
18th Amendemnt and the 21 st Amendment :
This is classic review of an Amendment for a study in creating a new amendment in the Bill of Rights. This did not eliminate any other amendment, but merely trumped legislation on a state level for the possession and consumption of alcohol. I have not seen any proposal to eliminate any amendment except the 21st Amendment which eliminated the 18th Amendment and the enforcement of it through the Volstead Act.
This is a classic study of why the Congress should be very wary of calling a Constitutional Convention to enact any new Amendments which eliminate another previous amendment in the BOR. It is highly unlikely this would ever happen.
What I see happening is state by state, city by city, legislation to restrict the rights to keep and bear arms as defined in the 2nd. For instance, after the Heller decision, Chicago merely made it more difficult to obtain permits to carry...Mass is the same way. NYC forget it.
This is where we need to concentrate on reform, the local level. Look at California, bad guys kills kids at school and no one is allowed to carry there. One person who was carrying could have stopped that nut. Gun free zones only allow open season for the bad guys!
What we need is to be vigilant agaiinst local power hungry political bosses. We need to stop:
The 2nd Amendment.......Void where prohibited by law...
This bullya has to be defeated!
the http://www.usconstitution.net/constam.html
old-dog, not sure how your post supports or substantiates your reply. Expand on it if you wish or take some time and study up on these topics.
Original jurisdiction
Appellate jurisdiction
Judicial review
Marbury v Madison
Edit - There is a thread that just started today over in politics that addresses this issue
http://forums.gunbroker.com/topic.asp?TOPIC_ID=556630
This article also states that the Supreme Court shall have appellate jurisdiction in all these matters, "...both as law and fact."
It is this article which makes the SCOTUS the final arbiter of judicial matters in our country.
Isn't it ironic that the very people (progressives/liberals) who have lived on "Judicial activism" in cases such as gay marriage, removing religious activities from schools, and abortion now cry about judicial activism when it doesn't suit their agenda?
Article III, Section 1 of the Constitution states: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.
This article also states that the Supreme Court shall have appellate jurisdiction in all these matters, "...both as law and fact."
It is this article which makes the SCOTUS the final arbiter of judicial matters in our country.
Isn't it ironic that the very people (progressives/liberals) who have lived on "Judicial activism" in cases such as gay marriage, removing religious activities from schools, and abortion now cry about judicial activism when it doesn't suit their agenda?
quote:Article III
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.
It does?
How about section 2
quote:Section 2
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;10 --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
2: 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, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
quote:Section 3
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Looks like explanation of Original jurisdiction and appellate jurisdiction. Nothing about judicial review or "Judicial activism", as you call it.
Please do not assume from my posts that this is my personal stance on this subject. The side I will debate from was determined by the responses to my OP(This is the reason my op was a little vague, what ever the responses were I would argue the opposite. Can't debate if we agree.). Only debating the authority/powers of the SCOTUS as laid out by the Constitution.
Edit to add that in blue
I did cite a link for which you could refer to in my post. It was at the bottom of the post. I also cited the Heller case as well. I mean all one has to do is "google" Heller" and it will come up in dozens of links.
I also cited the example of the 18th amendment and the 21st amendment which repealed the 18th amendment. I wasn't aware that I had to cite vebatim both of those amendments in text. I assumed the educated person would be familiar with both amendments. My apologies.
My point was that to add or eliminate an amendment to the US Constitution there must be according to the Constitution in Article V, a Constitutional Convention must be called by the House. viz:
Article V - Amendment
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Furthermore as an example, I think we are about to see this June SCOTUS strike down the Health Care legislation as unconstitutional because the legislation pins its support from Article 1 Section 8, the "commerce clause" Scotus will likely hold it is a violation the Commerce Clause in Article One Section 8 due to overstepping of Congressional authority.
Ok I didn't get to the heart of the matter here I only cited cases whereby SCOTUS has acted but I missed the reasoning behind where they draw their power from.
Now let's examine Article III
Article III - The Judicial Branch Note
Section 1 - Judicial powers
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.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Perhaps it is the above clause that could confirm SCOTUS has the authority to strike down or uphold legislation that "Congress shall make"
Perhaps I misunderstand here but this can be interpreted as the Constitutional authority by which SCOTUS draws it juirisdiction over legislation.
Now for my "opinion":
I think the very problem we are faced with in today's popular political ideology is power hungry local, state and national politicians are legislating away our rights by passing laws which undermine the very constitution upon which this nation was founded.
You posted support for your reply, no manure there, only those who make responses with no reasoning.
Will reply to the rest later. Too big a PIA to get very involved posting from cell phone.
Since SCOTUS has been the final arbiter of the Constitutionality in legislation over the last 223 years, do you think that this has been in violation of the Constitution? What would we do if there were no appellate or redress against legislation constructed and passed by legislators who are radical in their passing of laws that restrict the rights endowed by our creator, as cited in the DOI, and then outlined and protected in the BOR ?
http://www.theatlantic.com/politics/archive/2010/01/the-supreme-paradox-when-the-court-overrides-congress/34093/
The paradox of the United States Supreme Court is that, from one perspective, it is a traditional judicial institution deciding individual cases. But from another perspective, it makes broad value choices in the name of constitutional interpretation; strikes down acts of democratically elected legislatures; and issues rules with impact on our national life as great or greater than Acts of Congress.
This paradox is vividly reflected in the Court's decision in Citizens United v. Federal Election Commission which, on First Amendment grounds, invalidated Congressional limits on independent expenditures by corporations and unions in support of candidates (and by implication limits on such expenditures in about half the States). By a 5-4 vote, the Court explicitly overruled two of its own recent cases and blew away years of bi-partisan Congressional effort to address the problem of money in politics.
Then we have this excellent link:
http://legal-dictionary.thefreedictionary.com/Federalist,+No.+78,+and+the+Power+of+the+Judiciary
Federalist, No. 78, and the Power of the Judiciary"We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by Alexander Hamilton on the role of the judiciary in the government established by the U.S. Constitution.
Hamilton made two principal points in the essay. First, he argued for the independence of the judiciary from the other two branches of government, the executive and the legislative. In presenting a case for the judiciary, he reached his second major conclusion: that the judiciary must be empowered to strike down laws passed by Congress that it deems "contrary to the manifest tenor of the Constitution."
In presenting his argument for the independence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, "neither FORCE nor WILL but merely judgment."
As a result of this weakness, the U.S. Constitution protects the judiciary from the other two branches by what Hamilton called "permanency in office." Article III, Section 1, of the Constitution declares, "Judges . shall hold their Offices during good Behaviour." By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to judge the law, and those deemed adequate to the office must be retained rather than replaced.
The judiciary must also be independent, according to Hamilton, so that it may fulfill its main purpose in a constitutional government: the protection of the "particular rights or privileges" of the people as set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he proclaimed, the judiciary must be given the power of Judicial Review to declare as null and void laws that it deems unconstitutional.
Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master":
There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.
Although judicial review is not explicitly mentioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution.
I see no use in parallel threads at the same time.
One reason would be that some people that post in this forum, find the "Politics" forum SCARY. [:D]
quote:Originally posted by buffalobo
I see no use in parallel threads at the same time.
One reason would be that some people that post in this forum, find the "Politics" forum SCARY. [:D]
[:D]
I ain't askeered.
Pick, still got snow on the ground?
Yes Things can get out of hand very quickly when politics get injected into an intelligent topic...
My free time is very limited and this type of discussion is very time consuming for me. I am not in the same universe as some of the wordsmiths here and composing intelligent, well thought points takes alot of time and editing for me.
Thanks for the thought provoking thread Perhaps you would be interested in reading the Federalist Papers. They take aspects of the Constitution and the BOR and explain them in their context but one has to be very interested in the subject. I think it is better to use them as reference when specific Constitutional questions arise. They are considered original historical primary sources for your arguments. Best of luck and once again, thanks for the thought provoking thread.[8D]
Pick, still got snow on the ground?
Still have some piles here and there, but it is going QUICK with the weather we have been having. The six inches we got last Tuesday didn't hang around long at all.
I have not had a chance to check, was there a match today?
Good, hopefully that means fewer cancellations of IDPA matches and more chances to attend.[:p]
I have not had a chance to check, was there a match today?
Next IDPA match is Saturday the 14th at Clear Creek. Next weekend. Going to go?
quote:Originally posted by bigboy12
Article III, Section 1 of the Constitution states: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.
This article also states that the Supreme Court shall have appellate jurisdiction in all these matters, "...both as law and fact."
It is this article which makes the SCOTUS the final arbiter of judicial matters in our country.
Isn't it ironic that the very people (progressives/liberals) who have lived on "Judicial activism" in cases such as gay marriage, removing religious activities from schools, and abortion now cry about judicial activism when it doesn't suit their agenda?
quote:Article III
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.
It does?
How about section 2
quote:Section 2
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;10 --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
2: 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, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
quote:Section 3
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Looks like explanation of Original jurisdiction and appellate jurisdiction. Nothing about judicial review or "Judicial activism", as you call it.
Please do not assume from my posts that this is my personal stance on this subject. The side I will debate from was determined by the responses to my OP(This is the reason my op was a little vague, what ever the responses were I would argue the opposite. Can't debate if we agree.). Only debating the authority/powers of the SCOTUS as laid out by the Constitution.
Edit to add that in blue
I'm not saying that Judicial review is Constitutional. Judicial review was first practiced by John Marshall in 1802 in Marbury vs Madison.
The Internee's Representative:
"...whereas the party of the third part shall enjoinder the parties of the fifth part, the eight part, and of the half-part, from operating the clause, unless precedence can be established by the party of the second part, as having acted in retrograde to merge the clause without prejudice, BUT, and as it bears on this case, PRIOR to the..."
The bored Commander of the Gulag Landflll Squad:
"Fire!"
The nutshell of ultimate government interaction with the people, was described by Mao in one sentence.
[xx(]