News Constitution: Static or Living and in it means?

[ThinkToday]

Constitution: Static or Living and in it means??

I was reading "The Original Constitution", by Robert G. Natelson. The work assesses Constitution and Bill of Rights in light of eighteenth-century law, minutes from the Confederation Congress, the original Articles of Confederation, Federalist papers (FWIW, the Federalists were those supporting the ratification of the Constitution), the Anti-Federalists, the legislative discussions with North Carolina, New York, Rhode Island, etc., that were holding out on ratification, personal papers of those that were there and engaged in the process. I find the representations made to the respective legislatures regarding the meaning attributed to sections of the Constitution by Founders very interesting. Especially, since the ratification by each legislature was in great part due to these representations.

I have a ways to go in the book, but it appears the Constitution and Bill or Rights that were ratified differ from where we are now with their meaning. So, I’d like to look at this a few of different ways. 1) Quotes and citations of period work the author missed that would lend a different view or meaning. 2) The Constitution has a mechanism for allowing change, so does a court have the power to expand that meaning beyond the original intent? 3) The separation of powers vests the three branches with distinct powers, so can one branch usurp the powers of the others?

With respect to number 2 and 3, I would argue no. The courts were intended to interpret law and not make it. The courts are bound to interpreting the law’s meaning based on the Record. By definition, only the legislature legislates and only they can create or change “law”. The Executive can only agree (approve) or reject (veto) a law. The Executive is bound to enforce with equal vigor the laws it likes and dislikes.

This brings me to my main interest. Are the Constitution and Bill of Rights living documents? Can the Supreme Court change the meaning of the Constitution and Bill of Rights to make it PC or fit into the modern world? Given the Courts are not specified in the Constitution as a mechanism or branch that can amend either document, I find it unlikely the founders would have intended and hand full of life long appointed persons to have the ability to amend either document by “interpretation”.

I’ll close with a life experience: In the 70s, I can remember my oldest brother arguing with my dad about a bar exam question. The gist of it was my brother argued "something" wasn't right, as in justice. My dad, who had been an attorney for decades, said something like: "The law is what it is. The law is a set of rules for resolving disputes. Only with a firm understanding and agreement on the rules (laws) can people go into a courtroom and know where they stand. If the law says the moon is made of green cheese, you argue fervently its green cheese. If you want to argue the moon is rocks and dirt, run for the legislature to change the law." To put it another way, in an ideal world, the judge and jury could be of any political, ethnic, social, etc. persuasion and it should have no disparate impact on the application of the law. There is a place to change law and it's called the legislature.

 

[SixNein]

This brings me to my main interest. Are the Constitution and Bill of Rights living documents? Can the Supreme Court change the meaning of the Constitution and Bill of Rights to make it PC or fit into the modern world? Given the Courts are not specified in the Constitution as a mechanism or branch that can amend either document, I find it unlikely the founders would have intended and hand full of life long appointed persons to have the ability to amend either document by “interpretation”.

Yes it is a living document. The Supreme Court's job is to interpret the constitution and laws in general. For example, what does General Welfare mean?

 

[ThinkToday]

Yes it is a living document. The Supreme Court's job is to interpret the constitution and laws in general. For example, what does General Welfare mean?

Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.

See linked article. http://www.nationalreview.com/articles/281166/questioning-supreme-court-s-supremacy-joel-alicea for the following:
Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Surely, you wouldn't argue Jefferson didn't know what he meant as it was written.

 

[Astronuc]

Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.

or the whims of a body of legislators, or political party, or executive and his/her coterie.

The preamble indicates the purpose of the Constitution - basically the document establishes a structure of government, and places certain authorities in an Executive, Legislative and Judicial branches, and reserves certain privileges to the states and people.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

http://www.archives.gov/exhibits/charters/constitution_transcript.html

 

[ThinkToday]

or the whims of a body of legislators, or political party, or executive and his/her coterie.

Somewhat, but not entirely. Legislators can be replaced every couple years, and political parties rise and fall quickly enough. As for the executive, they are taken to court by States, citizens, organizations, etc. when they don't uphold the law. The Supreme Court, has become unaccountable. The voting margins on the Court make it virtually unthinkable that politicians would allow a "friendly vote" on the Court to be removed. IMO, we have what Jefferson was so concerned about.

But, back to the base question. Can the Court, by judicial determination, change the Constitution such that it doesn't reflect the agreed upon intent during ratification? Can the Court, by judicial determination, change the meaning of a law such that it doesn't reflect the agreed upon intent during passage? If so, why do we have legislators if ultimately the Court will rewrite a law to say what it thinks it should say? What good would amending the Constitution via Congress or future Convention do, if the Courts could alter anything passed?

 

[russ_watters]

I think the OP is improperly framed, yet correctly answered: static and living should refer to whether the document can change, not whether interpretations can change.

Logically, it is pretty silly to have a document that can mean whatever we feel like having it mean. My opinion is that re-interpretation is just a sneaky way to avoid the difficult process of making an amendment.

 

[SixNein]

Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.

See linked article. http://www.nationalreview.com/articles/281166/questioning-supreme-court-s-supremacy-joel-alicea for the following:
Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Surely, you wouldn't argue Jefferson didn't know what he meant as it was written.

We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.

Gingrich's proposition would be the end of separation of powers.

 

[ThinkToday]

We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.

Gingrich's proposition would be the end of separation of powers.

“We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.” – There is a legalism known as stari decisis, “Latin: to stand by that which is decided.” The principal that the precedent setting decisions are to be followed by other lower courts. In that respect, courts do look to past cases, but stari decisis is not absolute. Nor does it state the meaning is in flux. A Stari decisi argues the opposite by pressing the need to have settled decisions. I would argue that a stari decisi demands a reverence not just for settled decisions but for the intent of the law and Constitution, as written.

The fifth five men that were the Framers were largely lawyers and formerly English citizens. I’ve not found any period reference that set the Constitution and Bill of Rights in anything other than rigid intent. Look to the ratification arguments that held specific meaning to achieve legislative approval. The copy of the reference book is in my Kindle, so I can't link the citation, so I'll retype it. "Forrest McDonald, perhaps America's leading constitutional historian, has observed that, "The main body of the Constitution, more than two-thirds of it, address the task of making government act in accordance with law." Further citing the work, "Thus, the Constitution denied officeholders the power to alter it as they could alter other law." Further quoting the work, "Elbridge Gerry - former federal convention delegate and later Vice President- explained to his colleagues in the First Congress: 'The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the constitution different from the original instrument.’" I think it follows logically that that same strict construction argument that was considered binding on Congress would be equally binding on the Court. Keep in mind people like Gerry were the same people that went to their respective legislatures to explain the meaning of various aspects of the Constitution in the effort to obtain ratification of the Constitution. Thus, it would be hard to argue they lacked understanding of what was intended and agreed upon.

I've never seen anything in Gingrich's published works to indicate he'd break the separation of powers, unless you are referring to having the Justices explain themselves. In that regard, keep in mind the following: 1) The executive branch is held accountable to congress and must respond to congressional demands for most of the operation aspects of government. 2) The judicial branch must respond to Congress for its financial operations, court expansions, judicial appointments, etc. 3) The executive branch has been taken before the Supreme Court many times to challenge Executive actions. I find it ironic the Court would be so offended at being held accountable for its decisions when it so readily holds the Executive and Legislative Branches to account. Do you remember the time Congress (partly controlled by Republicans) granted the line item veto to President Clinton, only to have the Supreme Court step into the fray and tell Congress what it can and can't do with it's own powers?

 

[SixNein]

“We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.” – There is a legalism known as stari decisis, “Latin: to stand by that which is decided.” The principal that the precedent setting decisions are to be followed by other lower courts. In that respect, courts do look to past cases, but stari decisis is not absolute. Nor does it state the meaning is in flux. A Stari decisi argues the opposite by pressing the need to have settled decisions. I would argue that a stari decisi demands a reverence not just for settled decisions but for the intent of the law and Constitution, as written.

Meaning is often decided through precedent. Precedent allows some degree of consistency to develop in law. But yes, precedent is not absolute. If precedent was absolute, erroneous decision made in the past would be set in stone. The court always has the option of diverging from precedent if it has good reasons. But in many cases, it will be reviewed by higher courts to check if the reason was indeed good enough.

The fifth five men that were the Framers were largely lawyers and formerly English citizens. I’ve not found any period reference that set the Constitution and Bill of Rights in anything other than rigid intent. Look to the ratification arguments that held specific meaning to achieve legislative approval. The copy of the reference book is in my Kindle, so I can't link the citation, so I'll retype it. "Forrest McDonald, perhaps America's leading constitutional historian, has observed that, "The main body of the Constitution, more than two-thirds of it, address the task of making government act in accordance with law." Further citing the work, "Thus, the Constitution denied officeholders the power to alter it as they could alter other law." Further quoting the work, "Elbridge Gerry - former federal convention delegate and later Vice President- explained to his colleagues in the First Congress: 'The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the constitution different from the original instrument.’" I think it follows logically that that same strict construction argument that was considered binding on Congress would be equally binding on the Court. Keep in mind people like Gerry were the same people that went to their respective legislatures to explain the meaning of various aspects of the Constitution in the effort to obtain ratification of the Constitution. Thus, it would be hard to argue they lacked understanding of what was intended and agreed upon.

The court's basic job is to be the authority on the constitution and law in general. If the legislation was the authority, they could ignore all restrictions placed upon them, and the constitution would become a mere suggestion. The same is true for the executive branch should you grant it authority. And the job of the court was agreed upon in the constitutional convention: (All but 2 members said no).

(You may have to log into your school to read this:)
http://www.jstor.org/discover/10.2307/1600662?searchUrl=%2Faction%2FdoBasicSearch%3Ffilter%3Diid%253A10.2307%252Fi272247%26Query%3D931%26Search.x%3D0%26Search.y%3D0%26wc%3Don&Search=yes&uid=3739912&uid=2&uid=4&uid=3739256&sid=55903079943

http://www.jstor.org/discover/10.2307/40040272?uid=3739912&uid=2&uid=4&uid=3739256&sid=55903184763

I've never seen anything in Gingrich's published works to indicate he'd break the separation of powers, unless you are referring to having the Justices explain themselves. In that regard, keep in mind the following: 1) The executive branch is held accountable to congress and must respond to congressional demands for most of the operation aspects of government. 2) The judicial branch must respond to Congress for its financial operations, court expansions, judicial appointments, etc. 3) The executive branch has been taken before the Supreme Court many times to challenge Executive actions. I find it ironic the Court would be so offended at being held accountable for its decisions when it so readily holds the Executive and Legislative Branches to account. Do you remember the time Congress (partly controlled by Republicans) granted the line item veto to President Clinton, only to have the Supreme Court step into the fray and tell Congress what it can and can't do with it's own powers?

When one branch declare it will ignore the courts, it is a violation of separation of powers:

From your link:

Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.

Gingrich would be able to decide his own constitutionally imposed limitations of power.

Congress does not have absolute power. It has limitations imposed upon it by the constitution. If congress oversteps its limitations, the supreme court has the ability to say no. Congress does have the option of amendment to the constitution. If it creates such an amendment, the courts are obligated to oblige.

 

[Jimmy Snyder]

When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?

 

[mege]

Logically, it is pretty silly to have a document that can mean whatever we feel like having it mean. My opinion is that re-interpretation is just a sneaky way to avoid the difficult process of making an amendment.

This.

When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?

Except they have the power to do so. IMO the implication of your statement is like calling the incarceration of murderers tyranny. Technically, yes - but there exists a social contract (for lack of a better term) that allows a government (or in your comment's case - the SCOTUS) to do so.

 

[Jimmy Snyder]

Except they have the power to do so.

Who gave them that power?

 

[Vanadium 50]

Who gave them that power?

Articles III and IV of the Constitution. (You can read the thinking behind this in Federalist 78 and 80) The check and balance here is that while the Supreme Court has this power, they have no ability to enforce, only persuade.

 

[Vanadium 50]

I'm not sure what Gingrich's proposal will actually do, in that unlike the other branches, the Supreme Court actually issues explanations of why they decided what they decided - called "opinions". These are carefully crafted because they establish precedent. Having this occur in two places, one of which involves extemporaneous speech seems to me to be a recipe for making a mess. Especially as Mr. Gingrich already gets what he is nominally asking for - an explanation.

As far as the argument against strict constructionalism, the classic example is "what happens when Congress passes an unjust law? Is there no recourse?" (And its twin "what happens when Congress passes an unjust law favored by the majority?")

 

[Jimmy Snyder]

Articles III and IV of the Constitution. (You can read the thinking behind this in Federalist 78 and 80) The check and balance here is that while the Supreme Court has this power, they have no ability to enforce, only persuade.

This is the answer to question 3 in the OP.

 

[SixNein]

When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?

If congress decides to pass a bill to regulate all speech tomorrow... it would bump up against limitations imposed by the 1st amendment. The court is who decides these things.

On the other hand, congress has the power to amend the constitution. So If congress really really wants to do something, it can.

 

[SixNein]

I'm not sure what Gingrich's proposal will actually do, in that unlike the other branches, the Supreme Court actually issues explanations of why they decided what they decided - called "opinions". These are carefully crafted because they establish precedent. Having this occur in two places, one of which involves extemporaneous speech seems to me to be a recipe for making a mess. Especially as Mr. Gingrich already gets what he is nominally asking for - an explanation.

As far as the argument against strict constructionalism, the classic example is "what happens when Congress passes an unjust law? Is there no recourse?" (And its twin "what happens when Congress passes an unjust law favored by the majority?")

I think it would be downright dangerous for the executive branch to be some kind of authority on what is constitutional. They would be enforcing and judging. So if they violate your rights, they can declare it ok.

You would simply have a Nixon establishment: Above the law.

 

[mege]

I think it would be downright dangerous for the executive branch to be some kind of authority on what is constitutional. They would be enforcing and judging. So if they violate your rights, they can declare it ok.

You would simply have a Nixon establishment: Above the law.

Just a reminder: http://www.nationalreview.com/corner/260494/breaking-obama-administration-declares-doma-unconstitutional-wont-defend-it-court-dani (the Justice department is under the Executive branch)

Is his approach an appropriate use of executive power in the context?

 

[SixNein]

Just a reminder: http://www.nationalreview.com/corner/260494/breaking-obama-administration-declares-doma-unconstitutional-wont-defend-it-court-dani (the Justice department is under the Executive branch)

Is his approach an appropriate use of executive power in the context?

Yes, and it has been done for a very long time. For example, see Myers v. United States, 272 U.S. 52 (1926). Another example is INS v. Chadha, 462 U.S. 919 (1983). http://supreme.justia.com/cases/federal/us/328/303/

The difference is that Obama is not ignoring the courts. If congress challenges Obama over the constitutionality, it will end up before the supreme court. The supreme court will have the final say in the matter.

 

[mege]

Yes, and it has been done for a very long time. For example, see Myers v. United States, 272 U.S. 52 (1926). Another example is INS v. Chadha, 462 U.S. 919 (1983).

The difference is that Obama is not ignoring the courts. If congress challenges Obama over the constitutionality, it will end up before the supreme court. The supreme court will have the final say in the matter.

Maybe I'm not being creative enough (or it's too early still) - but what do either of those cases have to do with the President making a constitutional-judgement and ignoring a law passed by congress? (because in the case of DOMA - the President was essentially ignoring congress) If anything, both of the cases seem to support my skepticism. INS v Chadha supports my claim that the President is acting out of bounds by refusing to enforce a policy (see Justice Powell's concuring opinion regarding anti-aggrandizement and making claims to areas of government for which your branch isn't an expert). Myers v US supports my claim by saying congress doesn't have the power to meddle in the enforcement of the executive branch. So why does the President have the right to make a ruling in the same fashion that the SCOTUS does?

From a constitutional standpoint: isn't it the President's obligation to enforce the laws passed regardless of his personal/political sentiments? He may be against something and has every right to campaign congress to overturn past laws, and he (or more likely someone on his AG's staff) can bring a case to the supreme court for constitutional evaluation.

 

[BobG]

. 1) Quotes and citations of period work the author missed that would lend a different view or meaning. 2) The Constitution has a mechanism for allowing change, so does a court have the power to expand that meaning beyond the original intent? 3) The separation of powers vests the three branches with distinct powers, so can one branch usurp the powers of the others?

The answer to #1 is yes, one has to interpret the original intent. The answer to #3 is no.

The answer to #2 gets kind of gray. For example, even something as innocuous as Article I, Section 8 "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ... To establish Post Offices and post Roads; " requires a change in literal translation if #1 is to be respected.

The intent of the post office clause is that the government has the right (and obligation) to facilitate communications, with the postal service being the only major communications method available at that time. (And the postal clause doesn't require the government to be the agency that provides the actual postal service - they could meet the intent of that clause just by ensuring there's some oversight of any private companies that provide the service.)

Expanding interpretation of that clause to include telephone, radio & TV, and internet communications is a perfectly appropriate expansion of the meaning beyond the original literal text, if not the original intent. (And notice the government merely provides oversight and regulation of telecommunications - it doesn't provide those services itself.)

And, in spite of the fact that #3 should be no, #3 obviously turns into a gray area, simply due to the fact that humans are making the laws and seem extremely skilled at creating vague, ambiguous laws or laws that conflict with other laws. Someone has to make sense of the hodgepodge and usually that's going to be the courts, since court cases are where the unintended consequences of new laws seem to show themselves. In other words, legislators may be legally capable of declaring that the moon is made of green cheese, but it sure can't require its citizens to eat that green cheese and expect that law to be enforced.

Or, as "Raising Arizona" so aptly observed about our legislative system:

Gale: All right, you hayseeds, it's a stick-up. Everybody freeze. Everybody down on the ground.
Feisty Hayseed: Well, which is it, young feller? You want I should freeze or get down on the ground? Mean to say, if'n I freeze, I can't rightly drop. And if'n I drop, I'm a-gonna be in motion. You see...
Gale: Shut up!
Feisty Hayseed: Okay then.
Gale: Everybody down on the ground!
Evelle: Y'all can just forget that part about freezin' now.
Gale: Better still to get down there.
Evelle: Yeah, y'all hear that, don't ya?
[Everybody lays down. Gale looks at the now-empty teller windows]
Gale: ****! Where'd all the tellers go?
Teller's voices: We're down here, sir.
Evelle: They're on the floor as you commanded, Gale.

 

[mheslep]

Articles III and IV of the Constitution. (You can read the thinking behind this in Federalist 78 and 80) The check and balance here is that while the Supreme Court has this power, they have no ability to enforce, only persuade.

Yes, though the power was in practical dispute until Madison v. Marbury 1803, where the first Chief Justice fist ruled a law unconstitutional. President Jefferson himself opposed the court's reasoning, though the outcome was in his Sec. of State's favor.
http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism

 

[mheslep]

I think it would be downright dangerous for the executive branch to be some kind of authority on what is constitutional. They would be enforcing and judging. So if they violate your rights, they can declare it ok.

You would simply have a Nixon establishment: Above the law.

Yes, and it has been done for a very long time. For example, see...

The difference is that Obama is not ignoring the courts. If congress challenges Obama over the constitutionality, it will end up before the supreme court. The supreme court will have the final say in the matter.

So to be clear then, you approve of the Executive choosing which laws it will or will not enforce, up until it is challenged in court?

 

[SixNein]

So to be clear then, you approve of the Executive choosing which laws it will or will not enforce, up until it is challenged in court?

Yes and no. The constitution takes precedence over lower laws. If congress passes a lower law that is in conflict with a higher law, the president is obligated to follow the higher law; therefore, he does not enforce the lower law. Obviously, he or she is acting in good faith that the courts will agree.

The troubling issue is the notion that a President begins to flat out ignore the Supreme court. We could easily find ourselves in constitutional crises going down that road.

 

[SixNein]

Yes, though the power was in practical dispute until Madison v. Marbury 1803, where the first Chief Justice fist ruled a law unconstitutional. President Jefferson himself opposed the court's reasoning, though the outcome was in his Sec. of State's favor.
http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism

There was some dispute; however, the majority supported the idea during the Constitution convention. In addition, it has already worked this way at the state level. Marbury vs Madison was the court's first time exercising a power it already had.

See:http://en.wikipedia.org/wiki/Judici...of_the_Constitution_regarding_judicial_review

 

[BobG]

Yes, though the power was in practical dispute until Madison v. Marbury 1803, where the first Chief Justice fist ruled a law unconstitutional. President Jefferson himself opposed the court's reasoning, though the outcome was in his Sec. of State's favor.
http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism

There was some dispute; however, the majority supported the idea during the Constitution convention. In addition, it has already worked this way at the state level. Marbury vs Madison was the court's first time exercising a power it already had.

See:http://en.wikipedia.org/wiki/Judici...of_the_Constitution_regarding_judicial_review

Strange case.

John Adams makes 42 lame duck appointments in the last couple days he's in office, but Secretary of State John Marshall was only able to deliver 25 of the appointments before Jefferson took office and decided not to honor the remaining 17 appointments.

Four of the appointed judges sue (with only Marbury's name used in the title of the case for brevity), while 13 didn't really care enough about the appointments to include themselves in the suit.

New Chief Justice John Marshall, who failed to deliver all 42 appointments while he was still Secretary of State, rules on the case, stating:

1) Marbury and the other three were entitled to their position as judge.
2) A writ of mandamus was the correct remedy for the plaintiffs
3) The US Supreme Court did not have jurisdiction, because the Judiciary Act giving original jurisdiction to the US Supreme Court was unconstitutional.

If the US Supreme Court didn't have jurisdiction, why offer an opinion on the merits of the case, since those opinions clearly had no relevance, nor were they enforceable? They certainly didn't result in Marbury, et al, becoming judges because the US Supreme Court had no jurisdiction to render a decision!

None the less, the first two were true and didn't require a US Supreme Court decision. If Marbury, et al, had sued in a district court (which did have jurisdiction), they surely would have won their case. Which Madison and Jefferson could have appealed to the US Supreme Court, which now would have jurisdiction since it was an appeal of a lower court's decision, and presumably the US Supreme Court would have still decided the first and second articles as stated.

And the remedy for Marbury, et al, after the US Supreme Court decision was to take their case to a court that did have jurisdiction? And Marbury and the other three judges served for how many years?

Actually, once the US Supreme Court made their decision, none of the four plaintiffs had enough interest in being judges to pursue their case any further.

The only thing this case achieved was to establish beyond a doubt the concept of judicial review. The plaintiffs didn't seem overly concerned about whether they actually got their judicial appointments or not.

 

[mege]

Yes and no. The constitution takes precedence over lower laws. If congress passes a lower law that is in conflict with a higher law, the president is obligated to follow the higher law; therefore, he does not enforce the lower law. Obviously, he or she is acting in good faith that the courts will agree.

The troubling issue is the notion that a President begins to flat out ignore the Supreme court. We could easily find ourselves in constitutional crises going down that road.

So, the President can ignore congress OK, but not the SCOTUS?

Let's also remember that the constitution (wrt policies) deals with how to make the policies. To use the first ammendment as an example: it doesn't neccessarilly make 'speech supression' illegal, but it makes LAWS suppressing speech illegal. This is a very important distinction to make when dealing with separation of powers IMO. If the executive has ultimate decision on weither or not to enforce a policy - why even have a presidential veto and the opportunity for congress to over ride it? The President would ALWAYS have the upper hand if they were given free reign on what to enforce or not "Oh, you overrode my veto? I'll just not enforce your puny law!"

Also, I remember early in the current administration they specifically made note that the Justice department has a history of defending current laws:

Justice spokeswoman Tracy Schmaler said Friday that the department is abiding by its standard practice of defending existing law and that the filing doesn't mean Obama has changed his mind about wanting to see gay couples win federal recognition.

"Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system," Schmaler said.

http://www.huffingtonpost.com/2009/06/12/obama-defends-antigay-def_n_214764.html

(Just a note - I think that the office of the President and the executive branch have been gaining too much power in the past few decades. I bring up DOMA because it's the most recent, well documented, and egregious example of the executive ignoring generally accepted constitutional procedure. The reason for this power gain is purely politically - we, the voters, have become complacent (or ignorant?) of much of the power consolidation happening. With DOMA specifically: I think the executive just 'ignoring the law' prevents any proper discourse on it's constitutionality. There are good balancing arguements between several facets of the constitution for and against the law, but the executive dictat prevents any legal conversation in the highest court and probably just makes the whole 'issue' worse and more muddled.)

 

[Office_Shredder]

I think it's clear the president has at least limited ability to ignore congress. The oath taken upon entry to the office is to uphold the constitution. If congress passes a law that is in clear and direct violation of the constitution, say they pass a law saying that nobody may utter the words "ronald reagan was a bad president", the president is under no obligation to enforce that law.

 

[mege]

I think it's clear the president has at least limited ability to ignore congress. The oath taken upon entry to the office is to uphold the constitution. If congress passes a law that is in clear and direct violation of the constitution, say they pass a law saying that nobody may utter the words "ronald reagan was a bad president", the president is under no obligation to enforce that law.

Except he is already part of the process with Veto powers. If congress overrode his veto, then the President does have the power to bring the law before the supreme court (and still follow his 'upholding the constitution' vow). Especially if the constitution is taken to be a 'living document' a central authority on it's meaning is that much more important, otherwise every Tom, Dick and Suzee will have different interpretations in differerent branches of the government. The President and Congress, even with different opinions, should never be in an all out war with each other. I think there are far larger issues if the legislative and executive branches are on totally different pages (ie: directly and unprocedurally undermining each other).

 

[SixNein]

Except he is already part of the process with Veto powers. If congress overrode his veto, then the President does have the power to bring the law before the supreme court (and still follow his 'upholding the constitution' vow). Especially if the constitution is taken to be a 'living document' a central authority on it's meaning is that much more important, otherwise every Tom, Dick and Suzee will have different interpretations in differerent branches of the government. The President and Congress, even with different opinions, should never be in an all out war with each other. I think there are far larger issues if the legislative and executive branches are on totally different pages (ie: directly and unprocedurally undermining each other).

The president may adopt parts of the law which do not violate the constitution while not enforcing the parts that do violate the constitution. Often, the president will issue a signing statement declaring such an issue.

 

[BobG]

The president may adopt parts of the law which do not violate the constitution while not enforcing the parts that do violate the constitution. Often, the president will issue a signing statement declaring such an issue.

I wouldn't give signing statements too much weight. Seeing as how the US Supreme Court will not consider them at all, it's hard to find precedents in court records regarding their view of signing statements, but, occasionally, a justice manages to sneak in a reference to signing statements.

From Scalia's dissent in Hamden vs Rumsfeld (page 114):

(Of course in its discussion of legislative history the Court wholly ignores the President’s signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases.)

A signing statement may be a public explanation of how the President intends to interpret and/or enforce a piece of legislation, but that doesn't mean the President's interpretation or procedures are correct. I guess signing statements at least make clear the President is trying to act in good faith, and to implement a piece of legislation as best he can without violating provisions of the Constitution, but that only helps him if he's impeached.

Debate over the legal significance of signing statements has gone on ever since the Reagan administration: Using Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law.

It seems likely that our new type of signing statement will not be warmly welcomed by Congress. The novelty of the procedure and the potential increase
of presidential power are two factors that may account for this anticipated reaction. In addition, and perhaps most important, Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.

And, later, the theoretical questions that were left unanswered:

5. Theoretical problems. Because presidential intent has been all but ignored in interpreting the meaning of statutes, the theoretical problems have not been explored.

For example:
- In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance? As previously noted, presidential approval of legislation is generally just as important as congressional approval. Moreover, the President frequently proposes legislation. On the other hand, Congress has the opportunity to shape the bills that are presented to the President, and the President's role at that point is limited to approving or disapproving. For this reason, some may argue that
only Congressional intent matters for purposes of interpretation. If our project is to succeed, we must be fully prepared to answer this argument.

- What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls? Is the law totally void? Is it inoperative only to the extent that there is disagreement?

- If presidential intent is of little or no significance when inconsistent with congressional intent, what role is there for presidential intent? Is it entitled to the deference comparable to that customarily given to administrative interpretations?

Given how the US Supreme Court has handled Presidential signing statements, the answer to the last question appears to be no.

 

[TheStatutoryApe]

(Just a note - I think that the office of the President and the executive branch have been gaining too much power in the past few decades. I bring up DOMA because it's the most recent, well documented, and egregious example of the executive ignoring generally accepted constitutional procedure. The reason for this power gain is purely politically - we, the voters, have become complacent (or ignorant?) of much of the power consolidation happening. With DOMA specifically: I think the executive just 'ignoring the law' prevents any proper discourse on it's constitutionality. There are good balancing arguements between several facets of the constitution for and against the law, but the executive dictat prevents any legal conversation in the highest court and probably just makes the whole 'issue' worse and more muddled.)

If the President decides that a law is unconstitutional the President may instruct the Attorney General to not prosecute. You are mistaken in thinking that this prevents the law from being enforced or prosecuted, it is simply not enforced or prosecuted by the Attorney General. The cases will still go to court and if anyone finds the law worthy of protecting there will be a lawyer assigned to the case.

 

[skippy1729]

Congress and the president have the power to "amend" the Supreme Court; it is called the Judiciary Act of 1793. They could add justices to change the balance; usually called "packing the court". The threat of this usually causes them to fall in line as happened during Reconstruction and the New Deal.

Skippy

 

[russ_watters]

So this has been getting more coverage on Fox News over the past few days because of its spin, but here's an op-ed on CNN on some quotes from Obama that seem to show a disregard for the power of the judicial branch:

In what must be the most extraordinary statement of his presidency, Barack Obama on Monday blasted the possibility that the United States Supreme Court might overturn the Affordable Care Act. Obama said the court would take an "unprecedented, extraordinary step" if it overturns the law, because it was passed by "a strong majority of a democratically elected Congress."

Setting aside the point that the ACA did not pass with an overwhelming majority, but by a party-line vote in the Senate and seven votes in the House, and without the support of a single member of the Republican Party, the most astonishing thing about Obama's diatribe was the fundamental misunderstanding of our constitutional tradition it revealed.

http://www.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/index.html?hpt=hp_bn7

It is hard to know what could have been going through Obama's head when he said this, but I highly doubt that he misunderstands the role of the courts. It is possible that it is just an overreaction to nervousness about the possibility that his most significant accomplishment could be nullified just in time for his re-election bid. For that to happen would all-but be an official ruling that Obama's concept of government is un-American. But what if it is more than just an emotional mis-statement? What if it is a display of arrogant disregard for the court's power? It appears to me that Obama is starting to pile-up a pretty solid list of acts that at least appear to overstep his authority (I say "appear" because until someone tries to stop him, might makes right):

-Potentially illegal recess appointments.
-Probably illegal closing of the Yucca Mountain repository (court case currently on hold for procedural reasons).
-Ignoring the War Powers act regarding Libya (not a big deal since it is probably unConstitutional).
-Instructing the justice department not to enforce certain drug laws.

But unfortunately, Obama has been able to make Supreme Court appointments and at least one, Sotomayor, has made statements in line with the disregard for the Constitution that Obama displayed above (discussed at length in several threads at the time of her appointment). It follows pretty logically: if justices can just re-interpret the Constitution through a modern lens, why not just skip that step and let the legislature or the President do it its/himself? For that matter, why bother with the other two branches at all? If the Constitution and the law can be whatever Obama wants them to be, we may as well just disband them!

 

[mheslep]

... if justices can just re-interpret the Constitution through a modern lens, why not just skip that step and let the legislature or the President do it its/himself? For that matter, why bother with the other two branches at all? If the Constitution and the law can be whatever Obama wants them to be, we may as well just disband them!

That last consequence is forgotten I think by the Constitution-is-in-the-way crowd: take away the Constitution and then the US President and Congress retain the same authority as American Idol winners.

 

[Gokul43201]

...if justices can just re-interpret the Constitution through a modern lens...

I have a hard time understanding exactly what this means. Justices are constantly interpreting the Constitution through a modern lens, aren't they? With things like the internet and communications and such.

 

[russ_watters]

I have a hard time understanding exactly what this means. Justices are constantly interpreting the Constitution through a modern lens, aren't they? With things like the internet and communications and such.

I may have worded that a little too weakly: the issue of judicial activism as discussed in this thread and others is more than just applying freedom of speech to the new medium of the internet - applying the original intent to a new application. It is deciding that the original intent itself is now obsolete and knowingly disregarding it or finding a loophole that enables ignoring it. Currently, the catch-all loophole appears to be the interstate commerce clause. Let me pose a hypothetical to demonstrate:

Given the broad regulatory powers currently interpreted to be allowed by the ICC, why was it necessary to pass the 18th Amendment to ban the sale of alcohol and would such a thing be considered necessary today?

 

[mheslep]

Tuesday a Federal Appeals Court judge took issue, in court, with the President's Monday remarks:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

http://blogs.wsj.com/law/2012/04/03...-circuit-whether-it-supports-judicial-review/

 

[BobG]

It is hard to know what could have been going through Obama's head when he said this, but I highly doubt that he misunderstands the role of the courts. It is possible that it is just an overreaction to nervousness about the possibility that his most significant accomplishment could be nullified just in time for his re-election bid. For that to happen would all-but be an official ruling that Obama's concept of government is un-American.

Or his comment was based on the calculation that having the Supreme Court strike down the law in its entirety could motivate more pro-Obama voters turn out in hopes of placing more liberal justices on the court.

That may be a miscalculation. Striking down the law in its entirety may help him (I'm not sure how much it would, if any), but striking down just the individual mandate would be a disaster for him.

A heavy majority dislikes the idea of an individual mandate, while a heavy majority approve of the part that prohibits insurance companies from denying health insurance to people with pre-existing conditions. The latter can't stand without the former. Striking down just the individual mandate means Obama would have to oversee a Congress dismantling the ACA or else oversee the financial disaster of an ACA that can't bring in the money necessary to make it work.

On the other hand, http://www.rawstory.com/rs/2012/04/01/howard-dean-striking-down-individual-mandate-will-help-obama/ seem to have just the opposite take on the situation than I do, so who knows? (Of course, Dean doesn't actually explain how ACA could work without the individual mandate.)

Regardless, the decision will have an impact both on Obama's reelection hopes and on the future of the US Supreme Court.

 

[SixNein]

Tuesday a Federal Appeals Court judge took issue, in court, with the President's Monday remarks:



http://blogs.wsj.com/law/2012/04/03...-circuit-whether-it-supports-judicial-review/

Are federal judges vetting political speeches now days?

 

[TheStatutoryApe]

It is hard to know what could have been going through Obama's head when he said this, but I highly doubt that he misunderstands the role of the courts.

It looks like rhetoric. Obama was also initially publicly supporting the bill of attainder against the people receiving bonuses from the bailed out banks. I think he is simply saying what he feels, or was written into his speech, without much regard for whether or not anyone is going to realize the legal ramifications. Rhetoric is not about being precise, or even factually accurate, which is why I hate speeches and rarely listen to them.

Are federal judges vetting political speeches now days?

That was my thought. The judge is obviously pulling some partisan shenanigans. There is no legal basis I am aware of for the judge to bring the content of the speech into the court room. The only basis I can imagine is that the AG is essentially representing him in court but I can only imagine that would extend to public statements regarding the specific case.

 

[Vanadium 50]

This Federal judge was hearing a case, Physician Hospitals of America, et al v. Sebelius, where the issue came up. While it certainly looks like the judge was having a hissy fit, he wasn't having an irrelevant hissy fit.

By the way, this is a very interesting case. This law improves American's access to health care by banning physician-owned hospitals and prohibiting them from taking Medicare patients. There is a very interesting Fifth Amendment component to this, and an even more interesting question on standing.

 

[russ_watters]

Here's the full transcript of the remarks, relevant piece quoted:

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand[2], that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate[3].

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress[4]. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint[1] -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. [annotated by me]

http://www.whitehouse.gov/the-press...ident-obama-president-calderon-mexico-and-pri

Most of the comments on Obamacare itself appear to be scripted, but his comments on the court appear to me to be off-the-cuff. Particularly the part at the end about the conservative position on judicial activism - it is kind of a mess. His characterization of the conservative complaint on judicial activism[1] appears to me to be backwards - that typically it would be a failure to overturn an unconstitutional law that constitutes judicial activism. At the same time, he's saying he now supports exactly the position he is criticizing!

Still, even in the parts that appear scripted, he makes some poorly conceived comments:

[2] Justices need to consider the practical utility of the law? That's precisely the conservative complaint against judicial activism. The judicial oath is to the constitution, not to practicality. It does not matter if the law is functionally good or not, what matters is if it is constitutional. That's the judiciary's mandated. It is Congress's job to make useful laws.

[3] Referencing "the political debate" in the same paragraph as #2 says that the USSC should be ruling on the political debate itself. Wow. So much for the independence of the judiciary!

[4] No, it was not passed with a "strong majority".

 

[BobG]

By the way, this is a very interesting case. This law improves American's access to health care by banning physician-owned hospitals and prohibiting them from taking Medicare patients. There is a very interesting Fifth Amendment component to this, and an even more interesting question on standing.

Actually, it just does the latter (prohibits them from taking Medicare patients). (Physician Hospitals of America, et al v. Sebelius)

It's intent is to address the conflict of interest created when a physician refers his patients to specialty facilities which he owns. It's a practice similar to a physician prescribing a drug and then selling that drug to his patient - a practice that's already prohibited.

There is no law prohibiting a physician from self-referrals. Physicians can buy an MRI machine, suddenly start giving MRI's to an extremely high percentage of his patients (and charging them for those tests), and no law is broken. Or, a physician can refer a patient to a specialty department in the hospital that he owns (or partially owns), and charge the patient for services without the patient even knowing about the physician's ownership of the specialty service.

While there is no law prohibiting that practice, the government discourages it by limiting services it will pay for. The government won't cover charges for self-referral (via Medicare, etc), limiting the profitability of the practice.

There's an exemption for situations where physicians are partial owners of entire hospitals, based on the rationale the physician's share of any profits obtained by referring patients to 'his' hospital becomes too diluted to influence his medical decisions. Physicians have taken advantage of that exemption by starting small specialty hospitals that only provide a few services. Essentially, they've moved their specialty services out of the hospital so they can receive reimbursement from Medicare for referring patients to the 'hospital' owned by the physcian. Congress saw that practice for what it was and repealed the exemption, with this court case challenging the constitutionality of the repeal being the result.

 

[Vanadium 50]

Actually, it just does the latter (prohibits them from taking Medicare patients).

I think that's technically true, but I also believe that being Medicare-qualified is a necessary condition for hospital liceneure.

Also, yes there is already a law restricting self-referrals, the Stark Law, passed in 1989. I say "restricting" rather than "prohibiting" because a blanket prohibition won't be in anybody's best interest. The very fact that you bring this up illustrates the question being discussed - is it the Court's job to rule on whether the law is constitutional or unconstitutional, or is it to rule on whether a law is a good law or not?

One of the interesting things about this case is that it's the Government's position that one reason (#3) to ban these hospitals is that they "undermine public hospitals". I am very interested in seeing the outcome here. If this is affirmed that the government can ban private agencies that compete with public agencies, this could potentially have a very large impact: the government would have the power to ban private or even parochial schools, for example.

 

[mheslep]

This Federal judge was hearing a case, Physician Hospitals of America, et al v. Sebelius, where the issue came up. While it certainly looks like the judge was having a hissy fit, ...

From my little observation of and personal experience with the courts, if anything is to provoke a sharp and immediate response it is a challenge to their independence and authority by a plaintiff, which the President did on Monday. It would indeed be inappropriate for a sitting judge to find a microphone or write an editorial to respond to the plaintiff; the place for such a response is from the bench, and this judge did so. If the inappropriate/overreaction characterization has been earned by anyone, it was the President, not this judge.

 

[russ_watters]

CNN is currently running an editorial calling the homework assignment a hissy-fit and a disgrace: http://www.cnn.com/2012/04/04/opinion/toobin-court-assignment/index.html?hpt=hp_bn7

Sure, it supports my position, but I'd cut them a little slack here, at least on asking the questions, if not the homework assignment itself. The problem facing the courts is that they are supposed to be mute, which makes them defenseless against political rhetoric. Yes, the court is being partisan here, but it is Obama who pulled the court down into the mud. Judges don't hold press conferences to respond to the challenge in kind, so instead they responded in their official capacity. This is better, imo, than free-form rhetoric as it requires the Obama admin to carefully prepare their position and explicitly state it on the record. In other words, it pulls the argument out of the mud and puts it into the more civilized setting of the courtroom.

 

[jim hardy]

i just hate to see the insurance industry being handed the power to tax.

Might US vs Butler apply to the mandated participation and penalty?

 

[BobG]

One of the interesting things about this case is that it's the Government's position that one reason (#3) to ban these hospitals is that they "undermine public hospitals". I am very interested in seeing the outcome here. If this is affirmed that the government can ban private agencies that compete with public agencies, this could potentially have a very large impact: the government would have the power to ban private or even parochial schools, for example.

I wouldn't expect to see #3 affect much outside this particular case, and definitely not have the effect of banning private or parochial schools. People that send their kids to private and parochial schools still have to pay taxes that support the public school system regardless of whether they utilize the public school system or not. In fact, people with no kids at all have to support the public school systems.

On the other hand, something like this case could affect proposals for school voucher systems where people would be refunded part of their taxes in order to pay someone other than the public school system to educate their kids. (And if that ever happens, then I'd expect people with no kids to be the next group of outraged citizens.)

It's not unconstitutional for the government to decide to spend tax money where they see it doing the most good (even if they're wrong about how much their decision will actually help the general public). I would be shocked if the physicians won their appeal. I expect the district court to uphold the Texas court's decision that already denied the physicians' claim.

 

[BobG]

i just hate to see the insurance industry being handed the power to tax.

Might US vs Butler apply to the mandated participation and penalty?

I agree. Somehow, including the insurance companies in this makes it appear that we still have private medical care instead of socialized medical care?

Obviously, deciding the government would be the health insurer for everyone and raising taxes to fund that would never have passed for several reasons. But inserting insurance companies into the process just makes the process even more expensive (the insurance companies have to pull in a profit on top of whatever the cost of health care is), plus raises some constitutional questions the government may well lose.