Posted on 06/30/2003 11:26:07 PM PDT by JohnHuang2
Kansas? It isn't even Oz! And the wizard isn't a little old man sitting behind a curtain, pulling strings and levers to influence our perceptions.
No, in our living fiction, the string pullers and lever pushers are nine men and women in black robes, hiding behind a great big curtain called the Constitution.
In this scenario, these people are all powerful and getting more so.
They are not elected to their position, so the citizens whose lives they profoundly affect have virtually no say in who gets the job and why.
Once they get the position, they've got it for life, with all the money, staff, perks and deference that come with it.
They hide behind that constitutional curtain making decisions that change the country and the lives of the people for years to come.
They have power over all of us to regulate how we will be allowed to behave and live and in fact, what we are to believe.
They are virtually immune from all recourse by the people, until they voluntarily retire, get so senile they can't do the job, or just keel over dead.
Nice work if you can get it. The job is justice of the Supreme Court of the United States of America. One of them is the chief, but all nine wear the robes and all have a vote on whatever issues they choose to consider.
They're supposed to be one part of a three-part system of governance – the executive, the legislative and the judicial. The original intent was that the three branches would temper each other and prevent the accumulation of power in one over the other, which would decimate the intent of the framers of the Constitution.
In fact, the role of the judicial branch is (read that was) to interpret law within constitutional guidelines. As legal disputes advanced up through the courts, judges were supposed to be impartial arbiters of the issues. None of the courts are intended to make law.
Sounds good, doesn't it? Looks good, too. And, for a while, it worked pretty well. But gradually, politics insinuated its way into the whole operation, and here we are.
Forget about interpretation of the Constitution. Now those "robed ones" are twisting that document to fit their own views. They are not only making law, they are basing their decisions on their own social goals. Consider last week's decisions.
In two Michigan cases, the Court found (5-4) that racial discrimination is a no-no for undergraduate college enrollment if you do it by numbers but, if you come up with another way to do it, HEY – GO FOR IT! If you're talking about graduate schools or professional training, just about anything goes as long as you're not white or Asian.
Please define discrimination for me – I must have missed class that day.
Essentially, the court said that it's more important to have people of different colors than people qualified to meet academic standards.
Hey, I want one of those to do my brain surgery or defend me in a felony case, or be my professor.
In a Maryland case, the Court (7-2) threw out a death sentence because the defendants' lawyers didn't focus on the troubled childhood of the man and if they had, the jury might not have sentenced him to death. Wow! They're psychic!
Since virtually all criminals have tough lives, this ruling could mean the end of the death penalty. Of course, that's what many of the justices want – they're just getting it through the back door.
In a California case, the Court (6-3) reversed its decision to consider a corporate free-speech case against Nike. They decided that their decision to take the case was wrong. Hmmm. Sounds like no guts to me.
For Southern states, the Court ruled (5-4) it's OK to gerrymander electoral districts to change the influence of black voters.
Sounds like more legal discrimination.
In a Texas case, the court (6-3) not only threw out sodomy laws, it broadened the concept of constitutional protection of privacy. Take this to its fullest – and there are lawyers lining-up already – anything goes for anybody, anywhere and states can't stop it.
The common threads of these decisions are social engineering and the destruction of states rights – personal belief ahead of justice and the Constitution.
Don't like it? Tough. They've got the power and are using it.
If upcoming vacancies on that bench are filled with people of the same philosophical bent, you can kiss more than the Constitution goodbye.
It does sound as if more and more people are coming to the same conclusion I did years ago. The constitution says what ever five supreme court justices say it says.
Rescent decisions should make it quite clear. The constitution is a worthless document. The court years ago got around the fact that if some things are not covered in the words of constitution, they find them in an imaginary penumbra of that document. They find abortion, privacy, and racial quota's in that document when they are not there for human eyes to see. The document is what ever the justices say it is.
The Democrats held the presidency for 60 of the 100 years in the last century. They held the Senate for even longer in the last century. That allowed them to appoint the justices that say what the law is. But two of justices apointed by conservatives turned out to be liberal an many issues.
We have nearly two centuries where the citizens of the USA, presidents and congreses have accepted the fact that the supreme court makes laws. It is accepted. That can not easily be undone. Saying justices don't have the power they constantly exercise is an exercise in futility.
This situatin can not be realisticaly reversed by argument. Let me put it in simple terms. Let us say that two peope have a contest. One plays by the rules and loses. The other contestant wins because he does not play by the rules. The winneres advantage is one the loser can not overcome. The only way to change this situation is for both to refuse to play by the rules. If the former loser now wins a lot more than the former winner, the former winner will go for a return to where both play by the rules.
With a nation as split as the 2000 and 2002 elections proved, there is no guarantee that strict constructionist judges will be appointed. Had the Reagan and Bush appointments shared their views, there would be no problem. When people get their hands on the power being on the bench gives them, they get more liberal not more conservative.
People who argue for the resotration of the constitution as effective set of rules to govern the court, are doomed to lose as long as the other side refuses to play by those rules.
The constitution says what ever five supreme court justices say it says.Yes, and no. Your comment reminds me of the Governor of Montana who in 1912 said "whatever is right is constitutional." While you've amended that to "whatever is constitutional is what the Supreme Court believes is right," there is a huge difference between the two.
Your idea is not new: no one has argued this point since John Marshall. Not even the strictist constitutional constructionist would deny it. It's a non-issue.
Let's imagine the ultimate application of your theory, that the Constitution is, indeed, "living," and that the Supreme Court can at any moment create a new constitution. Could the Court, for example, by fiat, rule that owning weapons is unconstitutional?
Certainly. But to get there, the Court would have to assume a case that originated in some far lower court. The case would have to flow against the judical tide all the way through to the Supreme Court. Certainly, the Court could then rule that an individual cannot bear arms. It could deny entirely the 2nd amendment, and state that the 14th amendment requires that all citizens turn in their guns. And so it would be.
Now, the citizens could respond with a Constitutional amendment to certify the individual right to bear arms. Guess what, the Court's ruling, one that overturned precedent and state and federal law, would itself be overturned. So no, the Constitution is not what the Court says. The people say it. The larger question is if the people are willing to say it.
No matter what powers the Court may assume, it must still find in the Constitution some formula for its view. Even the worst legal and semantic contortion must originate in the original text. Were it otherwise, we'd not be upset at just the contrived right to privacy or OSHA and EPA regulations, we'd be entirely without the right to bear arms, free speech, and on and on.
Even the Supreme Court has to read the text. It can manipulate and twist it, but it cannot re-write it. Only the people can. Even with a couple bad weeks, the Constitution yet lives.
How many times does the Supreme court have to rule using legal hogwash not originating in the original text before you understand the truth.
The series of "Privacy" rulings by the supreme court were admited by the court not to be based on semantic contortions originating from the original text. They admitted the right of privacy did not exist in the constitution at all. That did not stop them from ruling it constitutional.
You seem to say that if the court rules that something is unconstitional that remedy is to amend the constitution. Only an idiot would argue that the Supreme court can't declare a constitutional amendment unconstitutional.
The court had proved many times that it can rule any way it pleases. And your "has to originate in lower court" bit is just fluff. Every possible case on everything imaginable originates in the lower courts. If the surpremes want to rule on anything they can just accept one of hundreds of lower case decisions to work their will on the population. One technique often used is to leak that the court would like a case on X. By golly every time they do that, some brilliant lawyer brings a case on X in the lower courts. It is just pure magic how lawyers are smart enough to figure that out.
The court admitted in their decision that the word privacy did not exist in the Constitution. They didn't even say the concept of privacy was in the constitution. To get around that, they said it existed in the penumbra of the document. The court imaginged that the right of privacy should have been included in the constitution so they found it in the penumbra ... What ever the heck penubra is.
That is about as constitution based as me claiming the penumbra of your contract to buy your home guarantees you will deed it to me free and clear for $1.00. If you don't believe it contains that language, go look at the penumbra of your house contract. You will find my Penumbra on your house contract, is filed right next to the Penubra on Privacy in the Constitution.
The citation of privacy by the court was not a not a legal and semantic contortion originating from the original text. It was just one example of the court's pure invention that makes my case.
I understand that theory and subtlety are not favored pastures of yours. Still, you must come now and then to harvest.
You say that the majority opinion in the Lawrence did not claim any constitutional origin. Go read it again, if you have at all. The decision explicity states its authority in the 14th amendment (the dissent certainly says it didn't, but that doesn't change the fact that the majority said it). It further goes after case law, etc., all according to standard practice.
I don't argue with you for a second that the decision is contrived. That doesn't change the fact that the decision declared its authority in the Constitution. There is not a word in it that says it is going against the Constition. Not even your most blatent judicial activist is so stupid as to say that. That is precisely my point, which your bluster ignores.
You wrote,
You seem to say that if the court rules that something is unconstitional that remedy is to amend the constitution. Only an idiot would argue that the Supreme court can't declare a constitutional amendment unconstitutional.Actually, I didn't "seem" to say it, I said it. Make me an idiot, but you'll have to pour a strong one for the Court to overrule an explicit amendment. As I said, they argue semantics, and that's the game, not consitutionality. Nobody not even the left, argues constitutionality -- you excepted, of course.
I will stipulate your view that the Constitution is what five Supreme Court judges say it is. I maintain that the Court is --yet - answerable to the Constitution, including and especially any further amendments to it that may overrule specific Court decisions. Such was the case with many amendments, including the 13th through 16th, and the 23rd-27th. And those are just those that I can think of off-hand that overturned specific case law, and settled it ever since.
I suspect we'll go in circles on this one.
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