THE UNITED STATES CONSTITUTION: WHAT DOES IT REALLY SAY?

Christian Law Association ^ | 2003

[Coleus]

Were there any FR threads posted about the constitution's 10 amendments on December 15th?

How was roe v. wade decided on the issue of privacy using the 9th amendment?

Amendment IX: Retention of non-enumerated rights by the people;

[Political Junkie Too]

I always wondered why there was a separate study arena in the field of law called 'constitutional law'. Don't all lawyers have to know constitutional law? I guess not.

Maybe Constitutional Law drives people nuts because of the way of the country today, or drives them out of Constitutional Law.

Ann Coulter and Mark Levin were constitutional lawyers.

-PJ

[jonestown]

Tailgunner Joe
'Article IV provides for Full Faith and Credit between the states, i.e., requiring that each state must recognize the laws of the other states.'

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Why are the laws of some states able to do away with laws of other states?

36 mathluv

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Good question..

If I move from Texas to Calif, why am I forbidden to possess my socalled 'assault weapons' in that State?

[nothingnew]

President Dwight D. Eisenhower was asked to proclaim September 17 to 23 of each year as "Constitution Week"

Gee. I wonder how many pubic screwels even mention the Costitution during this week. I mean, does it coincide and interfere with MLK Day, or some Salaam-Farqua-Abdul-Mysalami day, or perhaps a week of Gay Studies and "How You Can Learn to Love Butt Boogieing"?

FMCDH(BITS)

[agitator]

Anybody wanna tell me what the mechanism is that was used to subvert a 3 branch republic into a one branch tyranny? I know what it is, I'm taking responses.

[mathluv]

That is another example of one state over-riding the laws of another state. Dims are selective about the ones they support.

Where is Jonestown? I first read it as Jonesville - which is near Marshall.

[Texas Songwriter]

I believe the 10th amendment and the enumeration of powers was supposed to bind the federal government. It is quiet a shame that the Bill of Right, as they are called, are not entitled the Bill of Federal Government Allowances and Restrictions. We have slowly come to think that the 1st amendment restricts our religious liberties when in fact it was designed to keep the federal government to the hell away from ruling on this matter. The 2nd amendment was never designed to mean the federal goverment would allow the people to have or not bear arms. We told the federal government that we would not let them say anything about the subject. And so on. We have forgotten the lessons of our forefathers and we suffer now because inexcusibly we have not taken care of our God given freedoms. There is always a strong man ready to take them and use them against us.

[Dog Gone]

The rulings that bother me aren't.

Maybe someday I'll write a book on this, but I don't think enough people would care to make it work.

But the Constitution was flawed, in that nobody could be the final authority. That was perfect for the model of checks and balances, but it's no way to run a country, especially when nobody was the final authority as to what the Constitution requires and prohibits.

Our Founders were absolutely brilliant, but they didn't think this one through to its logical conclusion.

That's why the Supreme Court made a power grab in Marbury v. Madison to fix the flaw.

And frankly, it's the logical fix. Presumably, at least at the time, legal scholars who had read the Federalist Papers and had become learned in the law could make more informed decisions on how the Constitution should be applied than anyone in the other branches of government.

While briefly ignored at the time, Marbury has stood the test of time. We now leave the final decision on what the Constitution requires to the US Supreme Court. And it's worked fairly well. We are the most free country on the planet.

The downside to it is the decisions that we don't like, and I don't think I have to name them. Some are based on specious legal reasoning, and some are essentially based on something wholly imaginary.

We have to deal with those, while recognizing that the Supreme Court doesn't like to reverse itself at all. It's incredibly rare. Nibbling at the edges of previous decisions is they way it almost always chooses to go, until finally a previous decision topples under its own weight.

Sudden Supreme Court decisions almost never happen.

In any event, I'm more comfortable with the Supreme Court telling us what the Constitution requires than whatever jackass President might get elected. The Supreme Court respects past rulings, which means the Ship of State can only turn slowly. That's a good thing.

[Dog Gone]

My second option is to hang out with people like you.

Don't make it any higher than fourth. Lawyers are worse than wives, always seeing danger and threats in everything that's fun.

[supercat]

Many people say, "It says what it says and that's the way it is." Fine, but two people can read the same thing and reach different conclusions.

Stare decisis is just fine for deciding which of several reasonable interpretations should be used. Unfortunately, it is being used--illegitimately--far beyond that.

Perhaps someone needs to codify, whether by statute or constitutional amendment, what should already be--but isn't--practiced: Any court decision, in order to be valid, should be supportable without any reference whatsoever to stare decisis. This does not mean decisions should be made without regard to stare decisis, but they must be reasonable even without it.

I would further add another rule: No person shall be punished by the government, whether civilly or criminally, for any action in a manner beyond what a responsible and knowledgeable citizen would expect to have happen if caught.

This would have a few corrolaries:

1. Ignorance of the law should be an excuse when (and generally only when) even knowledgeable people don't know what the law is.
2. If someone can demonstrate that the government knowingly fails to enforce a law in some particular circumstance, such failire should render the law unenforceable unless the government can demonstrate that the defendant's conduct was materially worse than the conduct the government was ignoring. [Example: if a cop allows motorists to pass at 62mph in a 55mph zone, the cop should not be allowed to ticket someone going 56mph (assuming similar road conditions), but should be allowed to pull over someone going 90mph.]
3. If a reasonable and widely-understood interpretation of a statute is found to be incorrect, the fact that the wrong interpretation was widely and reasonably held should be a bar to the prosecution of anyone who acts upon such an interpretation prior to such finding.

Unfortunately, the above principles are not part of common practice, and this lack causes great damage both directly and indirectly. Directly, by causing people to charged with doing things that were widely believed to be legal, and indirectly by pressuring courts to establish bad precedents in an effort to decide individual cases directly.

For example, in Lawrence v. Texas, I would expect the defendants could have provided evidence that the state of Texas made little or no effort to prosecute individuals who engaged in sodomy 'discretely', even when police had reason to believe it was going on. The defendants could argue that, being aware of this, they had no reason to believe their activities would be of interest to the state. The state would then have to show some reason why the defendants should have been aware that their activities would arouse state interest.

My personal suspicion (just a hunch) is that the defendants were deliberately responsible for the burglary report. If that could be shown, they should be convicted. Such decision-making, however, should be the function of a jury.

BTW, one more thing I'd like to see as a legal practice change: make it 'acceptable' for a court to dismiss a case without prejudice and publicly state some acceptable arguments. There clearly were IMHO some arguments the Lawrence defendants should have been able to use that should have resulted in a remand, but they didn't use them. Had the Court told the defendants what arguments to use, the Court would then have been able to accept the defendants' case based on those arguments without setting bad precedent, or--if the defendants refused to offer such arguments--upheld the prosecution while making clear that the defendants--not the Court--were to blame.

[Tailgunner Joe]

It was also a perfectly logical fix when Andrew Jackson said, "Mr. Marshall has made his decision, now let him enforce it."

[Chris_Shugart]

Dog Gone is exactly correct. What once was a short and simple document is now (in its practical application) an unwieldingly long and complex set of legal precedents due to nearly 200 years of Supreme Court rulings. Each time they rule on the Constitution, it gets tweaked a little bit more. Supreme Court decisions have been officially archived since about 1825, I think, and in their entirety, are something comparable to 40 sets of encyclopedias. Experts on constitutional law are experts, not becasue they know the US Consitution so well, but because they've read and studied Supreme Court decisions.

[mrsmith]

Even Madison finally came to say:

"...notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor, by the order of its functions in relation to the other departments; and attracts most the public confidence by the composition of the tribunal.
It is the Judicial department in which questions of constitutionality, generally find their ultimate discussion and operative decision… "

There can be no final authority if the people are. That's not really a "flaw"- effectively the mob rules if their desires do not filter through the elected branches. I'm probably not being very clear- but there has to be a blank spot at the top for "the people".

"some are essentially based on something wholly imaginary. "
Yep, them's the ones I mean. They usually start off with a sentence like" "the Founders give us little guidance..."

[Dog Gone]

I don't think I disagree with any of those points, although I'm having a little difficulty reading this thread while trying to devour enchiladas at the keyboard. I'm finding that challenging at the moment.

[Dog Gone]

It was also a perfectly logical fix when Andrew Jackson said, "Mr. Marshall has made his decision, now let him enforce it."

Perhaps it was logical, but it wasn't practical. Somebody or something has to be the final word, or civil war would break out every generation.

[Tailgunner Joe]

If the Supreme Court doesn't like what the President does, how are they going to stop him?

[Tailgunner Joe]

When Civil War did break out, who saved the union? Was it the Supreme Court, or was it they who caused the war with their incorrect rulings?

[Dog Gone]

Obviously they can't. The only thing that stops him is the fact that most of us have accepted some fundamental rules that we'll feel are violated if one of the branches of government goes off the deep end.

Ultimately, we the people control the power. It's only because we believe that the President must follow the orders of the Supreme Court that he'll do so.

Even the Supreme Court is subject to political pressure from us. That's why the fights over new appointments are the most critical political events for our country, whether most people realize it or not. It's FAR more important than a presidential election, and certainly any congressional one.

But I have no illusions. If 75% of us decide that we want the USA to go commie, the Supreme Court will ultimately allow it. It's just a trailing indicator of public opinion.

[Dog Gone]

When Civil War did break out, who saved the union? Was it the Supreme Court, or was it they who caused the war with their incorrect rulings?

The war was going to happen, no matter what. The reasons were complex, far more so than are taught at anywhere below the university level, but they involved very diverse economic, moral, and legal reasons. Political, too, I suppose. You can't blame it on any cause, although that's what is typically done.

[Copernicus]

If the 5th Amendment prohibits coerced self testimony, by what witchcraft was the IRS 1040 Form created?

Best regards,