Posted on 12/04/2012 5:51:13 AM PST by Resettozero
This brings up an interesting question - if the SCOTUS rules in such a way that is exactly the opposite of the actual text of the Constitution, then how can that be considered constitutional?
If the SCOTUS cannot, in fact, give constitutionality to a law that defies the plain text of the Constitution, then this argument is moot, because ObamaCare IS in fact illegal.
If the SCOTUS ruling against the plain text of the Constitution makes constitutional what was unconstitutional before, then isn't that equivalent to amending the Constitution - thereby amending in an unconstitutional way that also renders the decision and the law unconstitutional?
Wow! I actually followed all that inside my brain and lived to tell about it. Agree.
“The SCOTUS are the refs here”
Assuming that’s true (though it isn’t), you act as if SCOTUS has never changed its mind. If ever it reverses a previous decision it was wrong either then or now. So, obviously, SCOTUS is not always right.
“they’re right by definition”
By the definition of what? The “supreme” part of their name? What about the definition of the word “sovereignty”?
“it’s moot”
Practically speaking, maybe. But only because most people think like you and have been tricked into thinking SCOTUS is the end all.
“If there’s a value 10th amendment challenge to Obamacare, then no actual constitutional lawyer has realized it”
What about the justices who voted to strike Obamacare, for instance? They may not have named it explicitly, but I guarantee they used its logic
Isn’t that the implicit argument whenever SCOTUS reverses itself? Take one of the Levy’s favirite cases, Brown. Didn’t it declare the court’s thumb was on the scale in Plessy? Even if only SCOTUS can correct SCOTUS people arguing against segregation between Plessy and Brown weren’t just bellyaching.
Brown didn't say that the Court "cheated" in Plessy, but that its finding of fact was in error. In fact, debate about Brown continues (sadly, IMO, but legitimately).
It's important to note how rare such reversals are. Even the horrible Dred Scott decision was never overturned -- it was invalidated with a Constitutional Amendment.
Even if only SCOTUS can correct SCOTUS people arguing against segregation between Plessy and Brown weren’t just bellyaching.
Yes. And ultimately, the point isn't that "we're stuck with it," but that we have to fight it intelligently. There were major shifts in the culture between Plessy and Brown. The arguments that won in Brown couldn't have been made much earlier than 1950.
Now here's something I find interesting: it's already explicitly legal for a state to opt out of Obamacare. It can do so as long as it covers the same number of people with the same level of coverage. If it can meet this goal, it can do so any way it pleases. Vermont, which is rabidly socialist, is already preparing to do this with their own state-based single payer system. What if we put all of this time and energy into coming up with a better free-market system for our states? What if we won with better ideas instead of sore-loser lawsuits and state-level bills?
Do you ever recall minutiae being of such moment as when winning or losing was at stake during recess? ... That is passion. That is treating life like it matters.
I see your point, but as an adult, I choose my battles with more wisdom. I see people come to blows over parking spots at the mall and I have to wonder what kind of miserable, petty, life they are treating like it matters.
By the way, I advised reading the 10th amendment to help you understand state nullification, mostly.
“what power did Congress invent?”
Most famously the power to tax directly insurance policy ownership status. Also probably pretty much everything else in the bill by pre-New Deal standards.
“They have the power to pass legislation”
Butt only in constitutionally appropriate manner (proper) and only pursuant to constitutional purposes (necessary).
“and the power to tax”
But not any old way they want. Not directly, unless it is an income tax or apportioned among the states according to population. Or if indirect, then uniform across the country. And not for any old purpose. Taxes must be raised to fund constitutional ends, meaning attendant to expressed powers, among which is not found regulation of not having insurance coverage.
“A lot of people are possessed of a rather inflated understanding of the 10th amendment”
Maybe your understanding is deflated. That is common. Along with the 9th it might as well have been erased by this point.
[Discussion of Constitutionality]
Fine. Where were these winning arguments when the case actually went to the Supreme Court? Did the plaintiff's lawyers forget their notes?
“Yeah, the Constitution. If you think something is unconstitutional, you petition the Supreme Court. If you lose, you are wrong. Those are the rules in the Constitution”
I realize you’re merely parroting currently popular assumptions, I’ll be patient. But it doesn’t say that. Talk about an inflated understanding! That covers jurisdiction, not final and infallible authority.
Firstly, it doesn’t even say judicial review exists, though some gave argued it’s implied in the phrase “judicial power.” Usually roundabout reasoning based on the supremacy clause is invoked to justify that inexplicitly expressed power.
Secondly, it doesn’t say that’s the only way to declare something unconstitutional, nor that SCOTUS gets the last say. If the states did not give up sovereignty except according to what is expressly granted to the feds or necessary to what’s granted and proper according to other portions of the agreement, what is to prevent it from asserting that sovereignty should SCOTUS fail to protect it? What about popular sovereignty, for that matter, and individual citizens in the jury box? Are they honor bound to follow SCOTUS when they perceive it to be wrong?
Why, aside from convenience and in the interests of preventing war? No good reason. Certainly not in the Constitution, and absolutely not in the section you cite.
I’m talking about the voting. House votes. Senate votes.
I think Marbury is right, and if judicial review is not implied by the judicial power at least it can be rationalized on a supremacy basis. The thing is that case didn’t establish finality. For federal purposes, maybe. It doesn’t touch the propriety of state or jury nullification.
Sincerely, I do not recollect ever seeing [people come to blows over a parking spot]. Doubtlessly, it is an occasional thing that happens...but I call Strawman on your argument.
1. Do you know what a strawman argument is? It's not like there aren't a zillion other petty things people come to blows over.
2. Google search for "fight over parking spot".
There are even videos in the results so you can see with your own eyes.
So, please show us where Healthcare is mentioned in the list of enumerated powers in the Constitution that are the responsibility of the Federal Government.
That argument lost. No one has to do prove it wrong anymore.
“I say the people and their respective States are the sovereign power”
Indeed they are, ultimately and while they consent to it for all those powers not delegated to the federal government. That is the meaning if the 10th amendment. Which is why I brought it up, and all the other poster can do is scratch his head and say the 10th wasn’t one of the major arguments brought before SCOTUS or argued in the media, so it must not apply.
It doesn’t touch the propriety of state or jury nullification.
That's an area I don't really know much about. I suspect (but I need to research) that some of this was covered in SCOTUS cases from the early 1800s, but again, I'd have to look it up.
I admit you've worn me down in that if the SC law raises new law on these issues, it may have some value.
all the other poster can do is scratch his head and say the 10th wasn’t one of the major arguments brought before SCOTUS or argued in the media, so it must not apply.
Fair enough. Do you have another explanation as to why a 10th Amendment challenge was not tried in court?
“Obamcare was passed constitutionally”
4 Supeme Court justices say it wasn’t as well as about 57% of the folks. The 10th Ammendment gives the individual states the right to nullify Federal law they deem unconstititutional. Thats what its for.
would love to see this pass. there and everywhere.
“if SCOTUS rules in such a way that is exactly the opposite of what is the text of the Constitution, then how can that be considered constitutional?”
According to the other poster, SCOTUS is right “by definition.” So it cannot possibly make an unconstitutional ruling. Which begs the question what it means when SCOTUS reverses its own decisions.
Or are they above the rules of logic, too? Mutually exclusive rulings can both be right by the magic of SCOTUS.
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