FReeper Book Club: The Debate over the Constitution, Brutus #15

1 posted on 12/20/2010 12:23:50 PM PST by Publius

To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

2 posted on 12/20/2010 12:25:21 PM PST by Publius (No taxation without respiration.)

Implied powers + Article 3 = unlimited power.

The answer isn't to check some branch against the judiciary. The answer is to expressly delegate federal powers, in a truly federal (not national) system.

You can't be federal and national at the same time. And you can't have limited powers AND implied powers, most especially when you have an unaccountable judiciary.

3 posted on 12/20/2010 12:36:53 PM PST by Huck (Antifederalist BRUTUS should be required reading.)

There is no authority that can remove them, and they cannot be controlled by the laws of the Legislature.

Not quite accurate, technically speaking.

Congress has the power to impeach them and remove them from office. Although it's hardly ever been used. There is no appeal from impeachment.

Congress also has the power to determine jurisdiction of the courts, which has been used only rarely and then not always wisely. There is also some ambiguity about what exactly this power means.

4 posted on 12/20/2010 12:36:53 PM PST by Sherman Logan

PS-- Intra-national checks never work to preserve liberty. The national branches may check each other, but they do so the same way seagulls check each other while fighting over crumbs. We the people are the crumbs.

Any true check on national power has to come from outside the national system, which, of course is impossible.

Hence, abolish national system.

5 posted on 12/20/2010 12:38:49 PM PST by Huck (Antifederalist BRUTUS should be required reading.)

ah jeez, more good stuff to read on free republic

ping for later read

6 posted on 12/20/2010 1:51:33 PM PST by deadmenvote (goverment is a waste of tax payers money)

what it comes down to is that WE THE PEOPLE must take control and keep all branches in line... when we don’t we get the supreme shaft...

teeman

7 posted on 12/20/2010 2:00:27 PM PST by teeman8r (Act nobly, behave humbly. Not the other way around.)

WE THE PEOPLE must take control and keep all branches in line

Impossible. So much of the damage is done before we're born. We have no authority to overthrow it. Old precedents live on. We the people have no power whatsoever to keep the judiciary in line.

8 posted on 12/20/2010 2:14:10 PM PST by Huck (Antifederalist BRUTUS should be required reading.)

You can't be federal and national at the same time.

In Federalist #39, Madison parsed those aspects of the system that were federal versus those that were national. I take it you disagree with his paper.

9 posted on 12/20/2010 2:36:48 PM PST by Publius (No taxation without respiration.)

i didn’t say it would be easy.... but it is not impossible...

teeman

10 posted on 12/20/2010 2:36:53 PM PST by teeman8r (Act nobly, behave humbly. Not the other way around.)

I disagree with his entire premise that you can have a system that is part-national. I say a system that is part-national is a national system, and that such a system obviously tends to solidify and grow its nationalistic powers over time.

I think his ideas have been utterly disproved by 200 years of practice.

11 posted on 12/20/2010 3:01:22 PM PST by Huck (Antifederalist BRUTUS should be required reading.)

13 But I say this system has followed the English government in this: while it has departed from almost every other principle of their jurisprudence under the idea of rendering the judges independent, which in the British Constitution means no more than that they hold their places during good behavior and have fixed salaries; they have made the judges independent in the fullest sense of the word.

This is quite true and has proved to be a problem. It wasn’t supposed to be as such though. Under Madison’s original arguments in the Constitutional convention, the judiciary needed to be an independent branch. I think his arguments still hold. That is the USSC should be independent. The problem though is that the USSC has taken upon itself to make law as opposed to negate law. The original arguments of Madison were consistent, the Bill or Rights made it less so, the subsequent amendments made it even more inconsistent and activist judges use that inconsistency for their own purposes.

Case in point, California’s gay marriage law. Under the original constitution and per Madison’s arguments, there would have been no federal case. It would not have fallen under Federal jurisdiction. However the due process clause extended the equal protection clause of the 14^th Amendment to the states. The equal protection clause implies (to some) that making a discrimination between the legislative definition of marriage and other definitions is prohibited. The final stroke is judges who decide to extend legislation to areas it was not intended rather than negate it. So a humble judge who thought that California’s law was unconstitutional would have negated California’s marriage law. Instead we have judges like Breyer who say, "you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."

So all that to say, the problem we have today is not necessarily judicial independence. The problem is judges who chose not to understand the premise of the constitution is that the branches check each other and where they don’t check each other, they balance each other. Brutus is arguing only one side, that there is insufficient balance once the judges are appointed. History has proven he is correct.

56 I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments and to melt down the states into one entire government for every purpose as well internal and local, as external and national.

Brutus is correct. National supremacy was Madison’s stated purpose at the constitutional convention. Madison – "the highest prerogative of supremacy is proposed to be vested in the National Govt." Madison’s argument that "states rights" would only mean as much as the National Government said they would mean has proven correct.

And with that out of my system, it’s on to the . . . .

Discussion Topics

At 9, Brutus points out that the Supreme Court has control over the Legislative branch. Should there be a way for Congress to overturn a Supreme Court decision, and what should it be? What would your first choices be for bad decisions that need to be reversed?

I think an amendment to the constitution is required. Congress or the states are insufficient here, I think. In the absence of law there is liberty. We are free to do as we can. Laws only serve to limit our options. Some limits are necessary and generally agreed upon. Where they are not generally agreed upon, there should be no law. At a minimum the constitution should be amended such that the USSC can only nullify laws rather than extend them.

Should the members of the Supreme Court have term limits, rather than lifetime appointment, and should they be submitted for reconfirmation to the Senate by the President? What would be the advantages and disadvantages of this?

I’ve toyed with this one. Two justices elected by an electoral college, every two years for a term of eight years with the president appointing the odd member above eight members make sense to me. That, by itself, would make the judges accountable but if they were to extend law rather than negate it, as the branch of last resort, they would have more power than the legislature. That would not be good. No set of words is a guard against tyranny.

12 posted on 12/20/2010 5:23:54 PM PST by MontaniSemperLiberi (Moutaineers are Always Free)

To: Publius; All

Great post. OUTSTANDING discussion!

BUMP-TO-THE-TOP!

13 posted on 12/21/2010 7:01:56 AM PST by PGalt

Please be kind enough to show me in the Constitution, not some court decision but the Constitution itself, where anything the judicial branch does in any way binds either of the other two co-equal branches of government.

There is a very good reason why the founders neglected to give the Judicial branch ANY enforcement capabilities!

14 posted on 12/21/2010 7:10:09 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)

To: MontaniSemperLiberi

The problem is that the court has usurped powers definitely NOT granted them by the Constitution and, thus far, few have been willing to challenge them on it!

15 posted on 12/21/2010 7:15:36 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)

That’s the beauty of Article 3, if you were a big government Federalist. It doesn’t explicitly describe the powers of the judicial branch. But it is inferred indirectly, by the powers granted. Hamilton acknowledged as much in Federalist ...was it 82? Brutus understood it the same way. And then Hamilton and Washington proved it in the first days in operation. Marshall affirmed all of it later. These were all framers. It’s history now.

16 posted on 12/21/2010 9:34:37 AM PST by Huck (Antifederalist BRUTUS should be required reading.)

That’s the beauty of Article 3, if you were a big government Federalist. It doesn’t explicitly describe the powers of the judicial branch.

I beg to differ! The powers of the Judicial branch are explicitly laid out in the Constitution! (see below

Article III

Section 2.

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;--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.

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.

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.

17 posted on 12/21/2010 9:54:02 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)

Sad to see you devolve into vapid cut and paste mode so immediately. Your post is utterly meaningless.

18 posted on 12/21/2010 10:01:03 AM PST by Huck (Antifederalist BRUTUS should be required reading.)

You said that the Constitution does not explicitly describe the powers of the Judicial branch. I disagreed and showed you EXACTLY where that was done.

Please explain how that is a “vapid cut and paste”?

My post may be “meaningless” to you but I doubt that many other will find it so.

19 posted on 12/21/2010 10:10:16 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)

To: Bigun; Sherman Logan; Huck

You are correct. It is a common mistake to imagine that our Constitution was created without the benefit of hard lessons learned. The inclusion of “with such exceptions, and under such regulations as the Congress shall make” is an example.

Among the British outrages listed in our Declaration was total monarchical control of the colonial judges. They were accountable to George III and not to the people.

Samuel Adams was among the first to point out their abuses and noted that their service was not limited to good behavior, meaning they could, and did serve even if they usurped the rights of colonial Englishmen.

Both complaints were addressed in our Constitution. Abuse of the Constitution they swore to protect is grounds for impeachment and removal. Congress in its capacity as closest to the people and states may limit the jurisdiction of the courts.

For instance, the Congress of the United States in a concurrent resolution could deny the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion. Contrary to popular baloney, the Scotus is not supreme over the other branches. All it takes is a virtuous people sending virtuous fellow citizens to Congress and the Presidency.

20 posted on 12/21/2010 1:11:39 PM PST by Jacquerie (Our government does not have the consent of the governed.)

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