Hello:

A while back I heard that the candidate for governor of Florida was advocating drug testing for welfare recipients... I laughed and laughed and laughed... THAT stuff doesn't happen in THIS country... We have a Constitution, for crying out loud.. That guy will NEVER get elected... And, IF he is, they'll NEVER let him do that.

Guess what?

Now we have Newt Gingrich saying that he wants to put the judiciary UNDER the control of congress or maybe the president himself...

I'm not laughing now... These guys MUST be stopped!!

excon

Drug testing for Politicians?
Some appear wacked out on something?

That isn't what he's saying . He is saying the same thing I've said about the Judiciary . They are but one equal branch of the government. But since Marbury v Madison they have acted as a superior branch and 'final arbiter ' . That is not what the founders intended ,and there are Constitutional remedies if the Executive decided to exercise them.

The problem is that most roll over and play dead whenever SCOTUS decrees .
Andrew Jackson said it right (although he never acted on it ) when he said "John Marshall has made his decision; now let him enforce it!".
Lincoln correctly ignored the Dred Scott Decision because SCOTUS was just plain wrong .

I am not supporting Newt for the nomination . But I applaud him for bringing this important issue into the debate .

By the way... most right wingers do not support Newt. His criticism of Romney's work in the private sector borders on Obama leftist populist clap trap .

Hello again, tom:

I suppose, then, if the Supreme Court rules AGAINST Obamacare, the president could just IGNORE it.

excon

I suppose . But he would probably need Congress to back him up. It is obviously not as simple as that . But... look back in history. Roosevelt's initial reforms were over ruled by SCOTUS ,and he came very close to adding Associate Justices to the court to change the equation.

The fact is that judges can be removed and whole districts can be added and removed . The only thing set in stone in the Constitution is that there will be a Supreme Court that is an equal branch. The rest is for Congress to decide . (Article 3 sec 1)

by the way ;a better example than Obamacare (which will probably pass the judicial test) is the Kelo decision.
This decision was universally panned by both the left and right . Congress voted 365 to 33 in support of a resolution expressing 'grave disapproval' at the court decision.”

There has to be a remedy from a wrong court decision beyond a new Amendment . We can both cite cases where SCOTUS has blown it . Bottom line is the judicial branch has a disproportionate share of the power in America, and too many judges have proven that they are not up to exercising that power with restraint or responsibility.

Hello again, tom:

We have had this discussion many times over the years. As uncomfortable as I am with the status quo, if congress could decide the Constitutionality of the laws they pass, the Bill of Rights is toast. Same thing with the pres...

It may be toast anyway. I suppose we should be glad it lasted 200 years.. I can feel my freedoms slipping away.

excon

And you think a panel of 9 judges should be the sole arbiters ? (actually it usually comes down to one judges decision)
If you think that then your freedom slipped away long before now.

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Originally Posted by tomder55

And you think a panel of 9 judges should be the sole arbiters ?

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Hello again, tom:

No.. But, who's better? Congress?? Which one of the Bill of Rights do YOU think would pass congress?

excon

Good... let' s agree then that no one in a nation that relishes liberty should have either an elected ,or an appointed lifetime position of power. The founding fathers never intended to have judges be kings.

Critiquing the courts in his memoirs ,Jefferson wrote .
The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.
That should not be ;but that is how judicial power evolved in a short time in our Consitution's history ;and it has become ever imperial since.
Would you agree to the basic premise of billls Congress considered like 'The Constitution Restoration Act', which would order federal courts to not rely on foreign laws, administrative rules or court decisions ?
That if the court decides a law is unconstitutional it has NO authority to impose a remedy ?


Let's face it.. if there is a proposition that all the branches are equal ,then both the judiciary and Congress have the ability to block the Executive ;BUT.. there is no blocking action inherent to stop an out of control judge in the current evolution beyond impeachment from the 2 houses of Congress ;and /or the time consuming amendment process. Both are not immediate responses to judicial over-reach like even lesser courts have on the President or Congress ,although often the decisions are so wrong that immediate action is required . And the only control the President has on the judiciary is through the appointment process .(at least that is the only one the Presidency except Lincoln has chosen to exercise. )

You ask about Congress. Well why not have SCOTUS decisions subject to a 2/3 over ride ? That would bring balance to the branches.

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Originally Posted by tomder55

You ask about Congress. Well why not have SCOTUS decisions subject to a 2/3 over ride ? That would bring balance to the branches.

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Hello again, tom:

It's a BETTER solution than the one we've got. But, no cigar.

As a sovereign citizen, my rights are NOT subject to a vote. Your proposal puts them up for a vote. The Amendment process put 'em in, and it's the Amendment process that needs to take 'em out.

I'd think you'd want to guard your gun rights better than that.

excon

OK I see your point on that . But what is more likely to take out your rights is a judiciary with unlimitted and unchecked power of interpretation ;especially one that has the protection of life time appointment. How was a court decision to uphold the interning of Japanese Americans in concentration camps protecting their liberty ? And yet SCOTUS upheld that law 6-3 ,with liberal stalwart Hugo Black writing the majority opinion.

Doesn't sound insane to me. Let's go to the tape:



P.S. For some real right wing insanity, how about those Big Bad Donuts?

Dictatorship is next cab on the rank

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Originally Posted by speechlesstx

Doesn't sound insane to me. Let's go to the tape

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Hello Steve:

I'm STILL not sure who Newt thinks should be in charge of the Supreme Court - the president or congress. But, in either case, would you be willing to risk your gun rights to that body?

You would? Dude.

What's insane is the two right wingers fighting it out for the league championship while the more enlightened bunch grovel for 3rd or worse.

excon

Quote:

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Originally Posted by excon

I'm STILL not sure who Newt thinks should be in charge of the Supreme Court - the president or congress. But, in either case, would you be willing to risk your gun rights to that body?

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Depends on which side had control. I believe he said something about the judiciary being equal, not more powerful - which is exactly as it is supposed to be.

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What's insane is the two right wingers fighting it out for the league championship while the more enlightened bunch grovel for 3rd or worse.

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What will be even worse is if tom wins.

Seems someone has lost sight of what this is all about. The idea is simple; not give anyone too much power, so the congress makes the laws, the judiciary intreprets them, and the administration enforces them. Seems simple enough, when did it get complicated?

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Originally Posted by tomder55

I suppose . But he would probably need Congress to back him up. It is obviously not as simple as that . But ... look back in history. Roosevelt's initial reforms were over ruled by SCOTUS ,and he came very close to adding Associate Justices to the court to change the equation.

The fact is that judges can be removed and whole districts can be added and removed . The only thing set in stone in the Constitution is that there will be a Supreme Court that is an equal branch. The rest is for Congress to decide . (Article 3 sec 1)

btw ;a better example than Obamacare (which will probably pass the judicial test) is the Kelo decision.
This decision was universally panned by both the left and right . Congress voted 365 to 33 in support of a resolution expressing 'grave disapproval’ at the court decision.”

There has to be a remedy from a wrong court decision beyond a new Amendment . We can both cite cases where SCOTUS has blown it . Bottom line is the judicial branch has a disproportionate share of the power in America, and too many judges have proven that they are not up to exercising that power with restraint or responsibility.

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I would say that you have this situation because you are a common law country operating under a civil law code. Perhaps there is no answer.

Congress voting on the rightness or wrongness of SCOTUS' decisions is tantamount to interpreting the law according to some type of popular opinion. Voting for judges runs the risk of turning the SCOTUS into a political football.

Tut

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when did it get complicated?

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Early in our nation's history the Supreme Court did a power grab... in the Marbury v. Madison case, it granted itself the power to declare acts of the other branches of government unconstitutional.
Nothing in the Constitution gave them such power.

So who are you going to have decide what is within the constitution and what is not. You can't leave that to politicians, too much self interest, you need some one impartial or at least removed from the political process

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Originally Posted by paraclete

So who are you going to have decide what is within the constitution and what is not. You can't leave that to politicians, too much self interest, you need some one impartial or at least removed from the political process

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Hi Clete,

That's supposably what they have now. Subjecting legal decisions to some type of popular vote is a contradiction of the legal process. Where there is little or no precedent judges will interpret the law.

I don't think there is a satisfactory answer to this problem. But I am a bit of a pessimist when it come to the law.

Tut

Well Tut it has been often said the law is a A$$ but what you going to do, the alternative is anarchy

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Originally Posted by paraclete

Well Tut it has been often said the law is a A$$ but what you going to do, the alternative is anarchy

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Hi Clete,

I don't know. I'm just glad it is not our problem.


Tut

yeah Clete you are right ...the people shouldn't decide the law

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Originally Posted by tomder55

yeah Clete you are right ...the people shouldn't decide the law

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Hi Tom,

People can decide the law but in the end it has to be put into words. What the founding fathers intended counts for little. What they actually said is all that matters. Do you recall any SCOTUS decision handed down on the basis of intention? Don't they hand down decisions based on actual wording?

Tut

Too frequently liberal judges expand the meaning of the words. They use this inane theory that the Constitution is "living breathing " . But the founders put in a system for amending so what this is essentially is a judge's intent to inject his/her meaning of the law and to change the Constitution to fit that judges predisposition.

Now I agree that often the words need interpretation and that is a legitimate role of a judge. But ,if there isn't an agreed upon framework on how the Constitution is to be interpreted ,then we are in 'Through the Looking Glass ' territory where words mean whatever an individual decides they mean.
Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

Quote:

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Originally Posted by tomder55

Too frequently liberal judges expand the meaning of the words. They use this inane theory that the Constitution is "living breathing " .

Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

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Hello again, tom:

I agree with you, except for the word "liberal". Right wingers too, make up stuff. Here's a good example... I've read the Fourth Amendment. It's INTENT is clear... The government can't search you WITHOUT a warrant... How else COULD you interpret it??

Nonetheless, the right wing - along with help from the left, passed the Patriot Act. IT says they DON'T need a warrant. Now, I don't know about you, but to ME, it's unconstitutional on its face.

Then I read above, how much you believe in "original intent"... You should excuse me if I'm a little confused..

excon

I too have read the 4th and I don't see anywhere that a warrant is required for a search. That is a judges expansion of the amendment and a perfect example of the distortion I speak of .

Here is the text :

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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It speaks of a protection against unreasonable searches and warrants issued upon 'probable cause ' . It does NOT say that you can't be searched without a warrant.

What happens is that the two clauses are combined into this misperception that only with a warrant is a search reasonable. You know in fact that is not true because no one has an issue when a cop searches an arrested perp for weapons and other things on their possession. So right off the bat you know that the 2 clauses are separate .

Quote:

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Originally Posted by tomder55

I too have read the 4th and I don't see anywhere that a warrent is required for a search. That is a judges expansion of the amendment and a perfect example of the distortion I speak of .

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Hello again, tom:

Without having a Constitutional argument right here, it's instructive to note that YOUR interpretation of what the amendment says is STILL an INTERPRETATION... Because when I read it, I have a DIFFERENT interpretation.. I don't think MY view is a distortion.

The key is that the document IS interpreted. I believe MY interpretation is what the founders intended. You believe YOURS is. Now, I COULD accuse YOU of distortion, but I'm won't. I'll stick with accusing you of having a different interpretation than I do.

excon

Yes, you both have different interpretations. But what basis at all is there for this view that the constitution is a "living, breathing" document?

I take my view from reading the debates in Congress leading to the actual language of the amendment. That is what I mean by originalism . By understanding the history ,I know why the amendment was considered . See next response for clarification.

The history of the Fourth Amendment
Provides no support for the view that all warrantless searches
And seizures were condemned by those who framed and ratified the
Amendment. Far from requiring judicial warrants for all government
Intrusions, the framers of the Fourth Amendment viewed judicial
Warrants as an evil and sought to limit their use. Numerous
Statutes, regulations, and common law rules authorizing warrantless
Intrusions, all on the books during the colonial era and after
The adoption of the Constitution, appear to support the claim that
Many early Americans were not concerned with warrantless
Searches and seizures.' The history surrounding the Fourth
Amendment, provides no support for the notion
That the amendment grants individuals a right to be free from warrantless searches and seizures.' On the contrary, the plain language
And original understanding of the freedoms guaranteed by the Fourth Amendment do no more than prescribe that government
Intrusions be limited to reasonable measures.

In other words ; the people who demand warrants for everything have it backwards. The founders were more concerned with the absusive use of warrants issued for unreasonable purposes. That was the oppression they faced from the Brits, and that is what they were guarding against.

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Originally Posted by tomder55

In other words ; the people who demand warrants for everything have it backwards. The founders were more concerned with the absusive use of warrants issued for unreasonable purposes.

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Hello again, tom:

That's an interesting INTERPRETATION... If it were TRUE, surly the Amendment would NOT have been written like it is. Because it says the exact OPPOSITE of what you say it says. In fact, it begins with "The right of the people to be secure in their persons, houses, papers, and effects...."

You're asking me to believe that the Amendment means the cops CAN search you WITHOUT a warrant as long as the search is reasonable... But, if the search is UNREASONABLE, they need a warrant. Is that not what you mean??

Really?

excon

I'm going by what Madison said and what the founders were concerned about. What I'm saying is that the question from law enforcement is to show that the search was reasonable. I go again to the idea that a cop can and often searches a person when in the process of an arrest. There is nobody who says that is an unreasonable and unconstitutional search. Yet under what you said ;the cop would by necessity have to stop the arrest and get a warrant to make sure the person being arrested wasn't carrying something like a weapon that could be used against the officer .

I have studied the issue ;and am clear that the debate about the amendment centered on the issue of abusive use of warrants and not the unreasonableness of being searched without one. Indeed ;they found warrants as potent tools of oppressive governmental power,and were more concerned with that than warrantless searches. They were rebelling against the English search and seizure practices ;the general warrants and the writs of assistance utilized by
Colonial customs officers. ;not trying to adopt them.
The preference for warrants is a mid-20th century construct of justices like Frankfurter.

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Originally Posted by tomder55

There is nobody who says that is an unreasonable and unconstitutional search. Yet under what you said ;the cop would by necessity have to stop the arrest and get a warrant

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Hello again, tom:

Nahhh... The right is not absolute. Limiting them while in police custody is NOT an unreasonable abridgment of the right...

I'm not suggesting that you aren't informed on the matter, tom.. As usual, you're better informed about it than I am.

I don't HAVE that history clouding what I read. Yes, it's probably a simplistic approach. Who ever said I was deep? That's why I LIKE the Bill of Rights. They're written in language I can understand.

excon

True ;but given any question I usually defer to James Madison since he was the giant behind most of the Constitution (and thankfully Jefferson was on assignment ,and not around to screw it up) .

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Originally Posted by speechlesstx

Yes, you both have different interpretations. But what basis at all is there for this view that the constitution is a "living, breathing" document?

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Hi Speech,

I think you just answered your own question. It extremely difficult to argue for.'original intent' for a number of reasons.

You can argue original intent until the cows come home. No one knows the original intent. The only ones who knows are the authors and we can't ask them because they are long since dead. All we have left are words on documents.

A constitution as a living and breathing entity is probably a reflection of how language works. Words change their meaning over time and continue to do so.

Not that long ago it was thought that if we can analyse language carefully enough it will reveal some type of underlying reality. We now know this is not the case. As we can see language can be a labyrinth of meaning.

Tut

Quote:

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Originally Posted by tomder55

Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

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Hi Tom,

That would be a surprise because I am sure there would be pages of debate as to what the words, 'original intent' actually means.


Tut

Actually not in this case. Madison proposed the amendment.. there was some minor changes and then it was passed and also passed by the States. There was a general agreement that a "Bill of Rights " was needed ,and was in fact an implied condition of the Constitution being passed. (Alexander Hamilton actually made a point that "rights " were implicit in the Constitution and did not need enumeration but he was over ruled ) .

I am not a Constitutional Scholar ,but I would expect that justices that are making decisions on the Constitutionality of a law would have the backround and brains to be able to read the volumes of writings words and opinions that went into the crafting of the Constitution and the amendments . In short time one can find in the history ;especially in the " Federalists Papers " (Hamilton ,Alexander ,and John Jay's letters to the states arguing the case for ratification of the Constitution ) the EXACT Meaning of the clauses . The debates leading to each amendment are also very easily obtainable .
If a judge can read into the Constitution what the judge wants to read into it AND impose that meaning on the nation then we are not as free as we think.

Quote:

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A constitution as a living and breathing entity is probably a reflection of how language works. Words change their meaning over time and continue to do so.

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The founders in their genious gave us a legitimate way to change the document and yet preserve intent. It is called the (under used) amendment process.
It is the preferred method of updating the Constitution to reflect changes . So to say it's a judicial responsibility to impose 21 century values on the law is absolutely absurd and undemocratic .

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Originally Posted by TUT317

Hi Speech,

I think you just answered your own question. It extremely difficult to argue for.'original intent' for a number of reasons.

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It doesn't change to suit the times. It's not clay that you can mold into whatever meaning you want, it's just not.