ChrisWeigant.com

Hidden Dangers Of Citizens United Ruling

[ Posted Monday, February 8th, 2010 – 16:55 PST ]

In the wake of the Supreme Court's decision in Citizens United v. Federal Election Commission, there has been a lot of anxiety over what elections will now look like with corporations and unions free to spend as much as they like on political advertising. Much of the discussion focuses on the overwhelming influence that could be purchased by deep-pocket entities, or on whether or not foreigners will be allowed into the American election process. But my main concern is not the money that will be spent overtly, but rather with what happens outside the public's eye -- the unseen influence which may be wielded.

I am not denigrating the overt problems which may develop, but rather feel that these problems have been adequately explored elsewhere by many others. Giving corporations and unions full free speech rights when it comes to elections may destroy American democracy as we know it, and then again it may not. I do wonder how many corporations will actually take the opportunity to attempt influencing voters in such a fashion, personally, since corporations are in business to make money. And these days, annoying half the electorate may mean a serious drop in a company's bottom line. So, at least at first, I think most large companies will be rather cautious about this sort of political activity. As I said, they're in business to make money.

Plus, corporate donors are used to funnelling such political money through lobbyists and through political action committees, and they may find this route to be more effective (and more anonymous), and continue to play the political money game pretty much how they've been playing it for years.

I fully admit that I could be wrong about all of that, though. Especially after a few election cycles, and after a few bold companies "test the waters" of the new rules.

And Congress could leap into action and solve the problem proactively, before even the 2010 midterm elections take place [pause for laughter]. Actually, Congress, even if it were super-efficient in such matters (which, realistically, it is not), doesn't have a lot of room to maneuver, at least in the short term. Laws may be passed which force corporations and unions to fully disclose their activities, or even force the leader of the corporation or union to appear at the end of the ad saying: "I'm so-and-so, and I approved this message." But, since Citizens United was a Supreme Court decision, Congress can't just pass another law to replace the precedents which were just overturned -- because any law they pass along these lines will likely be struck down as being unconstitutional as well (at least, with the Supreme Court we've currently got). Meaning that to truly fight back against the Citizens United decision, Congress would have to pass a constitutional amendment -- a long process which is extremely difficult to accomplish.

But what really worries me about the new rules for corporations and unions is what could happen out of sight of the voting public. I can foresee two ways for such invisible influence to happen, although there may be others I have not thought of as well, I admit.

The first of these is a corporation or union merely threatening to outspend an incumbent member of Congress in an upcoming election. This would likely be much more likely in the House, but could also take place in certain Senate races as well. Getting elected to the House is a relatively cheap thing to do, at least in comparison to Senate and presidential elections. Most House races only cost a few million dollars, tops. Many people are elected to the House who spend far less than that -- hundreds of thousands of dollars, not millions. This is due to the nature of House districts, many of which are demographically small, with no large "media markets" (large cities) within the district. In such races, radio ads may actually be a bigger expense for the candidate's war chest than television ads. Meaning also that it would be a lot cheaper for a corporation or union to influence such a small-time race.

Say, for the sake of argument, I was in charge of a large corporate entity. As the CEO of CW Industries, Inc., I make an appointment with a number of House members who happen to sit on the "House Committee On Those Pesky Bloggers." To each of them, I would say some version of the following (parsed, of course, by my legal team so as to avoid being technically illegal extortion or vote-buying): "I see the committee is going to consider the Blog Regulation bill next month. I'm here to tell you we don't like this bill, and would prefer to see it killed in committee. Now, there are two ways this could go. The first is if you vote for the bill, in which case we have a campaign advertising fund of twelve million dollars ready to support whatever challenger you face in your next election. What did you spend on your last race, a million and a half? Well, we're going to spend eight times that against you next time around, just so you know. We pulled in forty-two billion last year, so we've got a few million to spare to make sure you are voted out of office -- whatever it takes, basically. Or, of course, if you find it in your heart to vote against the Blog Regulation bill, then we would be using that money elsewhere, to defeat some other House member. So, just wanted to let you ponder that, Congressman."

The beauty of this scheme is (assuming it was parsed in language to avoid illegalities, which isn't really all that hard to do, when it comes right down to it) that if CWI, Inc. scares enough House members by these tactics, then we don't have to pay a dime during the actual election season. If I can pocket enough Representatives to kill the bill this way, then I have not promised anyone any actual campaign donations -- I have instead withdrawn the promise to spend against incumbents. Meaning such spending never actually takes place. Which means the public never even notices my naked vote-buying, because I don't run a single ad anywhere paid for by my corporation.

This could even work in Senate races in smaller states (or thinly-populated states). Some Senate races do run into the tens of millions of dollars, but those are mostly in large states with multiple big media markets (with very expensive television ad prices). Other Senate elections cost far less. Meaning influencing them would be within the budget of most large corporations as well. And influencing dozens of House races would be extremely cheap for even a modestly large corporation to handle (think of how much money is currently spent on lobbying, for comparison).

But the truly worrisome part of this is that it is all invisible to the public. Now, such deal-making and influence-buying already takes place in Washington, one might argue, so it really wouldn't be all that big a change. Which is, to a certain extent, true. But with no limit on what a single corporation (or union, to be fair) can spend on any particular race, the problem may get far worse, and extorting votes in such a fashion may become the new norm.

The second way corporations could influence (smaller) elections would be somewhat visible to the public, but in a much more subtle way. I have to admit that I'm no expert in F.E.C. regulations (or F.C.C. regulations), so I'm not even completely sure this one is legally possible.

But, as CEO of my corporation, what is to stop me from targeting a House district with a very limited media market, and just buying up all the available advertising time for a few months prior to an election? I could purchase every available ad in the market, and lock up the airwaves, giving me a monopoly over what voters hear and see during election season. Then I could either run innocuous ads to fill up the time (public service announcements, or ads for my company, or whatever), and squeeze out the political competition. Or (again, common sense tells me that this is likely illegal, but who knows?) I could re-sell the ads to whomever I choose. I could, in effect, decide who gets to speak to the voters and who doesn't, meaning I could sell all my ad space to the incumbent's challenger, and present only one side of the argument to the public.

A lot goes on in America that the public never sees, especially when it comes to corporations. Say you were a car company, for instance. Call it YouCo Motors. And say YouCo was having to recall a large number of cars because of dangerous design problems. Now, unless some massive class action court case digs things like this out, it is entirely possible (and entirely legal) for YouCo to have known about this problem for a long time. YouCo may have been threatened with lawsuits repeatedly over the mechanical problems that have now come to light. In each case, YouCo is free to offer a "settlement" to the party suing them, with a "non-disclosure" clause buried within it. Such a clause would, in essence, be a gag order on the party suing. In other words, the corporation pays out a bunch of money, but if the person receiving the money ever publicly talks about the settlement, then they have to pay the money back. Such "buying someone's silence" happens all the time in the American legal system. The result is that the public is never made aware of the problem, and keeps buying YouCo cars, confident that they aren't lemons.

The corporation in such an instance does a "cost/benefit" analysis, ever-watchful of their bottom line. It goes something like this: multiply the cost of settling one of these cases by the expected number of cases over a period of time -- then compare that number to the money it would take to actually do the redesign and fix the problem. Whichever number is lower, that is the way the corporation will choose, nine times out of ten. In other words, it is actually cheaper in many cases to just pay off the victims, instead of paying the money to fix the problem.

And the public, due to the non-disclosure agreements in the settlements, never hears about it.

This is why I get worried about the new rules for elections the Supreme Court has handed down. Because corporations are used to pulling political strings behind the scenes, not so much out in the light of day. And they are fully capable of performing such cost/benefit analyses, and figuring out what is cheaper -- complying with the new law Congress passes, or spending millions of dollars to kill the bill. Sometimes compliance will be the cheaper route. But other times, throwing money into the political election cauldron will be the cheaper way to go. And, knowing the influences money already has over our political process, what worries me isn't so much seeing corporate "vote for this guy" ads during election season, but all the leverage being used behind the scenes, that the public is never made aware of.

So while others are free to worry about the overt influence of corporate and union money on our political system, it's the money and influence (and threats of such) which are simply not noticed by the public, or even by journalists, that worries me far more. Such backroom dealing already takes place even with the limited tools of lobbying and political action committees, but (after Citizens United) it could get a whole lot worse, and a whole lot more intense. And, to me, such hidden dangers are even scarier than anything which happens in the public's view as a result of the ruling.

 

Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant

 

-- Chris Weigant

 

53 Comments on “Hidden Dangers Of Citizens United Ruling”

  1. [1] 
    fstanley wrote:

    I too have been wondering how things will play out in this election cycle. Will Corporations and Unions jump in publicly or stay behind the scenes. I was hoping that an unintended consequence of the Supreme Court decision would be to force lobbyists and donors out into the open. But now I see that there are all sorts of possibilities and none of them are looking very good for the American people.

    ...Stan

  2. [2] 
    Moderate wrote:

    Like Stan my first impression out of Citizens United was that this decision would serve to force out lobbyists and donors, but I hadn't even considered that it could actually just enhance the power of the back room deals.

    What I argued in the wake of Citizens United is that not only must all donations and contributions to candidate's campaigns be made public record, but further, we need to know every time a lobbyist or company even gets in touch with any politician, and if it isn't disclosed, and is later found out, it's grounds for them (the politician) to be removed from office.

    I still believe that kind of regulatory framework around Citizens United could help negate a lot of the dangers you point out. However I also think it's worth bearing in mind that you only looked at one side of the equation.

    Sure, as CEO of CW industries you'd be able to try and shut down legislation, but your competitors would be just as able to use the same tactics to force the legislation through. So there'd be forces from both sides. Of course that doesn't make it much better, which is why I support more transparency.

    But when you asked "what is to stop me from targeting a House district with a very limited media market, and just buying up all the available advertising time for a few months prior to an election?" I think you neglected the fact other corporations would be unlikely to ever allow any company to buy up advertising in that manner without getting involved themselves.

    Free markets ought to prevent any one corporation becoming too powerful a voice. Because different companies all have different agendas on most issues (on Climate Change, for example, Exxon would be lobbying against emissions standards, but Toyota, with their investment in the Prius, would be likely to be on the opposite side of that particular debate), Citizens United should serve to add more voices to the political spectrum, rather than drown them out.

    Besides, I still believe the real threat the political system faces is the influence of the mass media, which I believe to be more dangerous than the influence of corporations. Major media outlets make their money from the spread of opinion, and since people, by and large, only read/view media where the views expressed match their own, this incentivizes giving the news a "spin".

    If anything Citizens United will ensure that the ONLY people who have the financial muscle to take on the media outlets in a spending war can add more information to the information pool. Sure, they'll be bringing bias to the table, but the mass media already does that anyway. Perversely enough when many biases are brought to the table, people will set off one pool of bias against another, ensuring that they reach the middle ground, which is closer to the truth. Truth without spin, isn't that what we want?

  3. [3] 
    Michale wrote:

    This ruling is a double-edged sword that can hurt (and help) both parties..

    On the one hand you have the corporations that generally support the Right.

    But you also have the unions that generally support the Left.

    I don't see this ruling as any big deal, as the status quo is maintained..

    The little guy is still getting screwed...

    Michale.....

  4. [4] 
    Hawk Owl wrote:

    I've seen many references which pair up "corporations and unions" as the objects/targets of this ruling, but realize I'm hazy about one thing. Conservatives routinely get agitated about the "POWER" of Unions, but their numbers (and presumably their coffers of money to spend) have been declining for decades now.

    Does anyone have figures on the relative amounts spent on campaigning by Unions and Corporations?
    I don't know, but it seems to me they can't be equivalent.

    I grew up in a Michigan autoworker's family & community and, I will confess, voted for Nixon in my first election mostly because I'd been so turned off by the vitriolic rhetoric in the Union paper. Now, in my later (declining ??) years, though, it seems to me the Unions are now used as simply a straw man, a paper tiger, hauled out for equally rhetorical purposes by the Right to scare folks in the same way.

    Hawkowl

  5. [5] 
    Michale wrote:

    Now, in my later (declining ??) years, though, it seems to me the Unions are now used as simply a straw man, a paper tiger, hauled out for equally rhetorical purposes by the Right to scare folks in the same way.

    Considering how much influence the Unions wielded in the formation of DunselCare (AKA CrapCare), I don't think it's possible to overstate the danger that the Unions represent. Fully as dangerous as corporations, IMNSHO....

    Michale.....

  6. [6] 
    Moderate wrote:

    The Unions were the ones who fought against the "Cadillac care" provisions in the Senate healthcare bill. Don't think for one second that they're no longer an influence in the political sphere, far from it. In fact, if you look at the success of Unions in lobbying over healthcare vs the failure of healthcare insurers, it's arguable that at this point of time, Unions wield more power than companies.

    Of course that could change in November if the GOP have some success.

  7. [7] 
    LewDan wrote:

    Chris,

    Constitutional amendments are not for simply overruling a Supreme Court opinion. If at least one other branch of government agrees with the court it stands. If not the ruling is simply ignored. That is the remedy envisioned in the constitution.

    The Supreme Court has no exclusive powers. The Supreme Court is in charge of nothing but administering the federal courts. The Supreme Court has no enforcement powers. Nothing in the constitution makes Supreme Court opinions the law of the land.

    We'd have far more "constitutional crises" if we had a functioning constitutional government. We'd also have no "unitary executives" and a less partisan, less ideological, more objective and far more honest Supreme Court.

    Allow me to suggest we start insisting elected and appointed government officials start honoring their oaths of office and fulfill their responsibilities instead of worshiping the god "comity" as an excuse not to fight for the American people they are supposed to represent.

    I'm for impeachments not amendments. The Courts self-imposed role as the final arbiter of all things constitutional is not, and never has been, the law. If they insist on abusing their extremely limited authority in violation of the law then they should be removed. Spending years trying to pass another law to "clarify" what needs no clarification so they have yet another law to ignore is self-defeating.

  8. [8] 
    Michale wrote:

    OK, color me confused..

    I always thought that it was the SCOTUS' job to be "final arbiter of all things constitutional"..

    If not the SCOTUS, then who??

    Michale....

  9. [9] 
    Moderate wrote:

    It is. The Marshall court in Marberry v Madison established that. We can argue with the basis for that decision (and I did when I was studying Constitutional Law, because I think the decision was wrong) but it's been upheld by several cases afterwards that to start acting like it doesn't apply anymore, or to even reinterpret it, would be overturning more precedent than people claim that Citizens United did (which it actually didn't)

    Of course there are those who argue Marberry wasn't meant to establish the doctrine of the SCOTUS as the final arbiter, only to establish the principle of judicial review, but it's been held to mean the broader doctrine in so many cases since that it would be hard to argue that the doctrine doesn't exist.

    Personally I always questioned the validity of a SCOTUS decision making them the final arbiter because, well, that's a bit dodgy, but I'm sorry Dan, whether we like it or not, it is the law, and has been since 1803. You're basically suggesting that 207 years of precedent be torn up, and there's absolutely no ambiguity about it; it would be torn up. That's a massive constitutional crisis and would eradicate every SCOTUS decision.

    Including Roe v Wade. If you want that, be my guest; both Roe v Wade and Marberry are bad law, but I will repeat that old saying...be careful what you wish for.

  10. [10] 
    Michale wrote:

    Just playing Lucifer's Advocate (The Mark Pellegrino version :D) here....

    It harkens back the the MCA discussions we had here back in 2006 ( or thereabouts)

    To whit...

    The POTUS makes a legal determination with regards to scumbag terrorists.....

    The SCOTUS says (in true Jimmy Stewart fashion..), "Mr President!! You can't do that without the will of the People!!!"...

    The POTUS says (in true Ned Flanders fashion), "Okeley Dokeley".... and directs Congress to pass the Military Commissions Act, thereby allowing the POTUS to do what he originally wanted to do..

    Now, in this case, we circumvent the first part..


    "Was that the security system??"
    "Yea, I circumvented it.."

    -Bruce Willis, Damon Wayans THE LAST BOYSCOUT

    Here we have the POTUS disagreeing with a SCOTUS ruling and (likely) will direct Congress to come up with a law that allows the POTUS to do what he wants..

    I didn't have a problem with the actions of Bush in this regard and I won't have a problem with the *actions* of Obama either..

    I might disagree with the WHY, but the HOW is perfectly permissible (nay, it's what MUST be done) under the US Constitution.

    Michale.....

  11. [11] 
    LewDan wrote:

    Michale,

    The Constitution created three equal branches of government, none of which are an ultimate authority on anything especially the constitution as each is individually charged with upholding the constitution.

    Early on, however, the Supremes decided that they would be the final arbiter of constitutionality.—There is nothing in the constitution, no law was ever passed.—The Court simply decided it would take the role of deciding constitutionality and no one challenged it.

    But if nothing else the Citizens United decision should remind us that precedent is not law. The Congress and the President are free to ignore Supreme Court decisions they think are unconstitutional, and in fact have a duty to block them.

    SCOTUS was supposed to be insulated from politics by being appointed not elected, serving lifetime terms and having no enforcement power. But for decades conservatives have made a concerted effort to pack the court with partisan ideologues in an attempt to influence policies they've never been able to overcome democratically.

    SCOTUS as an mostly objective generally apolitical tribunal was well suited and has served reasonably as our constitutional conscience. But they've taken the privilege to be their right—It isn't, and never has been. They think its a right that gives them power and that has corrupted them.

    But it is not a right and their power is illusory. They lose it the instant the other two branches and the people no longer see them as unbiased and objective.

    Since they no longer even bother with a pretense of obeying the law, upholding the constitution or being objective its time for the remedy embodied in the constitution to restore their humility and objectivity by reminding them that they do not have a right to unilaterally decide what's constitutional and that they cannot enforce their opinions.

    Their only authority is the acceptance of the other two branches of government and the people when, and only as long as, they're seen as nonpartisan, objective, and of high integrity. The current crop of ideologues who lied their way through confirmation so they could betray their oaths to pursue personal private agendas do not deserve to have their opinions respected.

    It is dangerous for both our democracy and personal freedoms to allow them, or any branch of government, to believe it can act with impunity, dictate to everyone, and is answerable to no one. That was certainly never the intent of the founders and it certainly isn't in the constitution.

  12. [12] 
    LewDan wrote:

    Moderate,

    That's exactly what I'm suggesting. The facility with which lawyers alternately claim precedent trumps law and law trumps precedent depending on the result they seek does not impress me.

    The constitution is the law. The constitution defines how, and who may legislate new law and change or amend the constitution. The court has no legislative power. The court cannot make its own law giving itself unlimited power—or any power for that matter. Such unconstitutional self-serving circular logic is beneath contempt.

    And just because the other branches have respected SCOTUS decisions when they are deserving of respect does not mean they are now somehow obligated to let SCOTUS run unchecked for all eternity.

    Precedent is not law. Its age does not make it law. The fact that lawyers have become accustomed to it does not make it law. The fact that other decisions were based upon it does not make it law. Nor does a need or decision by Congress and the President to take a more active role in constitutional issues and exercise their full prerogatives mean that all previous decisions they have not challenged are magically undone.

    This isn't grade school. "Use it or lose it" does not make law. Claiming that SCOTUS has a legal right to unilaterally determine constitutionality for the U.S government simply because until now it has is simply not true and not the law.

  13. [13] 
    Michale wrote:

    SCOTUS was supposed to be insulated from politics by being appointed not elected, serving lifetime terms and having no enforcement power. But for decades conservatives have made a concerted effort to pack the court with partisan ideologues in an attempt to influence policies they've never been able to overcome democratically.

    Now, let's be fair here...

    The Democrats/liberals have done their fair share of concentrated efforts to pack as well...

    Since they no longer even bother with a pretense of obeying the law,

    "I DON'T BREAK THE LAW!!! I AM THE LAW!!!"
    -Sylvester Stallone, JUDGE DREDD

    Or, if you prefer a more recent quote...

    "Right here, Right now, **I** am the law!!"
    -Bruce Willis, UNDER SIEGE

    Sorry... I shouldn't be so facetious...

    But, like I indicated above, it seems to me that it is well established that the SCOTUS determines what the US Constitution means...

    While it may not have started out that way and while it may not be explicitly spelled out that way IN the US Constitution, it IS the way things are.

    As Moderate indicates, to change things now would (apparently) throw two centuries of legal precedence out the window...

    For example.. Going by the strict letter of the law, it's conceivable that it could be ruled that Texas is not really part of the United States.. But, can you imagine the turmoil if that strict letter of the law was followed??

    Or, to give you a more current example... Suppose incontrovertible evidence was discovered that Obama WAS actually born in Kenya.. Imagine the turmoil and chaos that would occur if it was ruled that Obama and Biden were NOT the duly elected leaders of this country?? Not to mention the complete and utter HORROR in the words, "President Pelosi"....

    {{{{shiver}}}} {{{shiver}}}

    There are many examples in real life and in literature that serving the greater good is a higher purpose than serving the letter of the law...

    Yea, I realize the irony of your's truly taking such a position, but there it is...

    Michale.....

  14. [14] 
    Moderate wrote:

    Michale: I have no problem with what you outlined, but none of that takes away from the role of the Supreme Court as defined in Marberry. What Bush did (and what Obama could do) is a workaround, and perfectly legal. Besides, as you say, the SCOTUS decision was that the POTUS needed the will of the people.

    He got it, via Congress. Obama is entitled to do the same. It's very different to suggesting impeachment for Justices for breaching the law (which they didn't).

    LewDan, are we really going to talk about packing the court? Which President was it that threatened a Supreme Court (rightly, by the way, I agree with what he did entirely) with packing it? Not a Republican.

    Incidentally, the SCOTUS was well within its rights to reach the decision in Citizens United. They did not overrule any precedent whatsoever (so your point that the case shows precedent is not law is wrong), they simply didn't consider any of the older cases to be sufficiently relevant to be precedents.

    You can argue with that, if you like. Feel free to analyse the decision and prove them wrong to have made that determination (if you can show that those cases were relevant enough to be precedent, they were wrong), but according to the decision itself, they didn't overrule precedent.

    You say "Their only authority is the acceptance of the other two branches of government", and I agree. Only they already have that authority. Justices are nominated by a duly elected President, to a duly elected Congress, who have to approve the appointments. That's where the people get their say.

    So unless you can prove they lied (and thus committed perjury, allowing them to be impeached and removed) then they have the authority that vested in any other Supreme Court since Marberry. Nonpartisan? You mean like Sotomayor?

    Would you be so outraged if a SCOTUS with more liberal judges than those of a conservative persuasion held the death penalty unconstitutional? Or stood up for the rights of gay people to marry? Partisanship has always exists, don't complain because at the moment it's a conservative court, because there have been plenty of liberal ones.

    When you say the justices joined the court just "to pursue personal private agendas", unless you're arguing for corruption (that Citizens United paid Justices, or any other such impropriety), what that boils down to is simply having opinions when they joined the court. All Justices have viewpoints on several issues, and all of them bring them to bear in cases they decide.

    That happens at every level of the court system. It is what it is.

    Remember what FDR did when faced with an intransigent court? The SCOTUS backed down. Even though FDR couldn't get the legislation pushed through allowing him to actually pack the court, he didn't need to. That's why there's little need to worry about the Scotus "believ[ing] it can act with impunity" as the truth is, they can't. There are checks and balanced in place.

    SCOTUS, via appointments, is answerable to the President, the Congress and, of course, the people. If enough people disagreed with Citizens United to put adequate pressure on the SCOTUS, it'd probably be overruled later. Remember how many conservative courts have upheld Roe v Wade because they feared a public backlash? I agree with you, it wasn't the intent of the founders, and it also isn't the case. But the SCOTUS is the final arbiter of the Constitution.

  15. [15] 
    Moderate wrote:

    LewDan, precedent IS law, under a common law system. Too many people think legislation is the only valid form of law; that's wrong. It's true in all Civil Law jurisdictions (like France) but the US is a common law system, as derived from the English common law.

    Under common law, precedent is law unless it's controverted by more recent legislation. Therefore an amendment would be the correct way to overrule precedent of the SCOTUS, unless the SCOTUS itself overrules precedent.

    That's why common law is referred to as "judge-made" law. Now unless the US were to adopt a Civil Law structure (and that would be a major overhaul) precedent remains law.

    "Nor does a need or decision by Congress and the President to take a more active role in constitutional issues and exercise their full prerogatives mean that all previous decisions they have not challenged are magically undone."

    Depend entirely on how they do it. If the President and Congress pass laws that overrule the precedent, then previous precedents (like Roe v Wade) are still binding law, until those are overruled individually. If, however, you say that the Supreme Court isn't the final arbiter of constitutional law, you're actually ripping up the roots of the Supreme Court's jurisprudence.

    That WOULD negate Roe v Wade, as it would mean that the court had no standing to make that decision. Legally, that's precisely what it means.

  16. [16] 
    LewDan wrote:

    Michale,

    I suggest that no other party has made the concerted strategic decision to overturn SCOTUS decisions and legislation by remaking SCOTUS the way conservatives have. Presidents certainly and not unexpectedly use their court picks to influence the court but only Republicans have made remaking the court a concerted decades long party strategy.

    And the claim that this would overturn all previous law is false. Each of the three branches has a constitutional mandate to uphold the constitution. But there is also no requirement that all three must sign off in writing endorsing every decision.

    As long as Congress and the President accept them Supreme court opinions are binding. If Congress and the President refuse to accept this one it does automatically and retroactively mean they've now rejected every SCOTUS opinion. That's nonsense.

    The court and its officers simply are used to the status quo and make lame arguments to justify keeping it, right or wrong, simply because its what they're accustomed to.—And suddenly, its not really the law that counts but the way we've always done things!

    Fortunately we aren't really required by law to be a country of lemmings.

  17. [17] 
    Moderate wrote:

    "As long as Congress and the President accept them Supreme court opinions are binding. If Congress and the President refuse to accept this one it does automatically and retroactively mean they've now rejected every SCOTUS opinion. That's nonsense."

    Of course it does. Because inherent in that rationale is that Marberry isn't law. And since every other decision the SCOTUS has reached since Marberry takes its authority FROM Marberry (in fact it's been cited in many cases to back that up), all those decisions become invalid if Marberry is invalid.

    What you're discussing is constitutional THEORY. What I'm talking about is not what the constitution actually says (if we go down that road, there's no right to an abortion, or right to privacy, or any of those in the constitution) but what constitutional jurisprudence says is the law.

    We're coming at this from different angles, I fear. You're coming it from a political base (and legitimately, this is a political site) but I'm coming at it from a legal perspective, basing my points on what the law actually says.

    I think we may have to agree to disagree on this one.

  18. [18] 
    LewDan wrote:

    Moderate,

    Precedents carry weight only within the judicial system, and as SCOTUS sees fit. We have a system based on common law but the constitution does clearly state what the powers of SCOTUS are. And the idea that "judge-made" law can overrule the constitution giving judges unfettered authority when the constitution clearly says they can't is insane, as is the notion that the other branches must either refuse to allow SCOTUS to decide any constitutional issues or else allow it to decide all constitutional issues.

    Your arguing that SCOTUS has amended the constitution by fiat simply because no one as objected to their making decisions for everyone until now is an argument that only a lawyer could love.

    Then claiming that only a constitutional amendment can reverse it is illogical. You pick and choose which parts of the constitution you will observe based upon the outcome you desire.

    But I'm a simple lad. Either the Constitution is the highest law or its not. Either you obey it or you don't.—And I've got to tell you if the constitution isn't really the law then SCOTUS has NO authority, over anything, and it doesn't matter anyway what is and is not constitutional. So you'll have to forgive me if I find your illogic unpersuasive.

  19. [19] 
    LewDan wrote:

    Let me add that your claim Marberry being law underpins all subsequent decisions is absurd. The constitution clearly gives each of the the three branches the right and duty to uphold the constitution. SCOTUS does not require the exclusive right in order to issue decisions.

    The constitution is crystal clear on what it takes to amend it—and Marberry isn't in there.

  20. [20] 
    Moderate wrote:

    Ok, I'll give this one last try:

    "the constitution does clearly state what the powers of SCOTUS are. And the idea that "judge-made" law can overrule the constitution giving judges unfettered authority when the constitution clearly says they can't is insane"

    Let's look at the constitution, in particular, article three:

    "The judicial Power of the United States, shall be vested in one supreme Court"

    "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,"

    Note: ALL cases arising under the constitution.

    Nobody said that "judge-made" law can overrule the constitution. What I did say was, under the constitution, and under the Marberry principle, it is the constitution itself that GIVES the SCOTUS the power to rule on constitutionality.

    "as is the notion that the other branches must either refuse to allow SCOTUS to decide any constitutional issues or else allow it to decide all constitutional issues."

    The constitution, as you say, is the highest law. Now either one reads the words in article 3 as giving the SCOTUs the power to decide ALL constitutional issues, or it doesn't. I've long argued that it ought to be none (ie that the constitution should be STRICTLY enforced by what it says, word for word, but as I said, that logic inherently means privacy isn't a right as guaranteed by the Bill of Rights. Which I don't think it is) but one thing that is utterly ambiguous about article three is that it's an all-or-nothing situation.

    I never argued that the SCOTUS has amended the constitution by fiat. What I said was that Marberry brought the interpretation of article three into question. Who was supposed to interpret the constitution.

    Under the doctrine in Marberry, it's for the SCOTUS to interpret article three due to the fact article three gives the SCOTUS that power. Which is a circular argument (hence why I disagree with it). However the alternative, which has absolutely no constitutional basis, is that the other two parts of government (President and Congress) decide, but the problem then was, those two have far more limits placed on their power under the constitution than SCOTUs does. So can we really have the President decided whether his actions are legitimate? Or Congress deciding if its actions are legitimate?

    It was a dichotomy brought about by a poorly drafted constitution. But that's an argument for another time. What is clear, however, is that the constitutional crisis was averted by the Marbury decision, and that decision has stood untested for 207 years. It was NOT an amendment of the constitution, as you seem to think I'm arguing; it was interpretation of it.

    Now unless we're saying that we, in 2010, know the intentions of the founding fathers better than Justice Marshall, who was appointed by John Adams himself, then I think we're going to have to trust that Marshall's interpretation is more valid than ours. I mean, John Adams only wrote the constitution, and seemed to have no issue with Marshall's holding.

    And no, I never claimed a constitutional amendment could reverse the holding in Marbury (although it could), because I think that'd be a disaster, as we'd be facing the exact same dichotomy again. And as I said, I suspect Justice Marshall knew a little more about the founding fathers than we do.

    What I did claim, and this is correct, is that only a constitutional amendment (or the SCOTUS itself reversing its earlier decision) could overturn Citizens United. Why? Because even if Congress ignored the ruling, when someone from a corporation decided to utilise the Citizens holding, and Congress then acted to stop them, the decision would end up...you guessed it, in front of the same SCOTUS. And unless they overturn their old decision, it stands.

    A simple law to overrule Citizens could be struck down, as Chris said. So all that's left is a constitutional amendment. Don't forget that at the time of the founding fathers, partisanship was less of an issue, and if the SCOTUS was crushing the Congress' or the President's ability to get things done, they provided the means to do it via an amendment. The fact that the current level of partisanship makes it harder doesn't negate that fact.

    One could make an argument, based entirely on the text of the constitution itself (which, as you yourself argue, is the highest law) that amendment was actually what the founding fathers intended to be the method used to deal with this situation, that amendment was the method they designed to stop the SCOTUS being able to unilaterally decide constitutionality. After all, if Congress and the President can amend the constitution, then the SCOTUS becomes bound to enforce the newly amended document instead of the old.

    Let's take a look at article five:

    "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution"

    Notice, Congress has the power to amend the constitution whenever it "deem[s] it necessary". That seems like a broad power, as broad as that conferred on the courts under article three, possibly with the intent to ensure Congress couldn't be held hostage by the SCOTUS?

    Feel free to argue that what I've presented is "illogic". The constitution backs me up, and certainly gives little support to your arguments.

    (Incidentally, I apologise for any misspellings of Marbury. I always forget how to spell it correctly)

  21. [21] 
    Moderate wrote:

    "Let me add that your claim Marberry being law underpins all subsequent decisions is absurd."

    But that's the logic used by the Supreme Court ITSELF to justify those decisions. If you're arguing Marbury isn't law, you're arguing that their rationale for making those decisions is unsound (because that rationale necessarily includes Marbury).

    Like I said, take a look at article three. All Marbury did was interpret that article, and in doing so establish the SCOTUS as the final arbiter. As I said earlier, article three is pretty unambiguous in one sense; it either gives the SCOTUS complete judicial authority (and I challenge you to enforce law in any other way but judicial) or it doesn't.

    "The constitution clearly gives each of the the three branches the right and duty to uphold the constitution. SCOTUS does not require the exclusive right in order to issue decisions."

    Uphold, yes. Decide the boundaries of? No. Apply the Bill of Rights? Also no.

    "The constitution is crystal clear on what it takes to amend it—and Marberry isn't in there."

    Because Marbury wasn't an amendment. It was interpretation. Constitutional Law 101.

  22. [22] 
    LewDan wrote:

    I've no problem with most of what you've just said up to a point. But you're stuck on "that's the way we've always done it."

    I agree that SCOTUS can run the courts anyway it wants, decide its cases any way it wants. The Constitution clearly gives it that authority. But if a company's assets are seized or its executives jailed in accordance with a law, SCOTUS can decide its not constitutional in court all day long. The executive branch can still keep those executives imprisoned, it can retain those assets. And it can do so as long as Congress funds it.

    What's SCOTUS going to do? It has no army, no police, no way to enforce rulings. None.

    Your whole argument is that the court's decided it has the authority of law because the court established a precedent saying it has the authority which the court honors...You've still offered no justification for the necessity of SCOTUS having exclusive authority other than that's what SCOTUS decided.

    You claim my arguments are legal "theory" rather than the law as practiced. True. But the theory is the law. Its never been necessary to do it but it is the law. The other two branches have the authority to do as they see fit in every arena other than the federal courts themselves. Only there does SCOTUS have complete authority although even they can be defunded.

    If they choose to make themselves irrelevant by insisting on opinions unacceptable to congress and the president THEN we need a constitutional amendment to establish a new court system.

    But your notion that there can be no "check" on SCOTUS is as false as the previous administration's claim there could be no check on a "war-time" President.

    As for your "interpretation" not being an amendment. SCOTUS interprets the constitution to give SCOTUS authority over congress and the president when the constitution limits its power to the judiciary alone, that is an amendment. There is nothing in the constitution making SCOTUS opinions binding on everyone else, nothing.

    You deride the actual law as "theory" insisting on honoring only the decisions SCOTUS has made about itself for itself liberally laced with selective excerpts from the constitution and a healthy dose of "but that's the way its always been done."

    As for your challenge to enforce a law in any other way than judicial what makes you think adjudication must be in federal court? Appeal boards, arbitration and military commissions immediately spring to mind.

    I'm not saying we should destroy the federal court system but if SCOTUS wants to draw a line in the sand and insist that 5 men can rule this nation simply by claiming that they alone know what is and is not constitutional then that's exactly what we should do. And its exactly what the constitution intended.

    Though it probably never envisioned a SCOTUS insane enough to go there, I doubt it envisioned a congress and president who would simply roll over and play dead either.

    Now let me challenge you. Since you think that a constitutional amendment's needed to correct SCOTUS just how would you write an amendment that they simply could not "interpret" as unconstitutional or "really" meaning that they can in fact do whatever they please? And just what court do you think would adjudicate your case?

    I suggest, again, that your arguments are circular and illogical. That you would give unfettered control to SCOTUS with no recourse if they abuse their position. And that its exactly the kind of legal thinking that has corrupted the court and needs to be corrected.

  23. [23] 
    Moderate wrote:

    "I agree that SCOTUS can run the courts anyway it wants, decide its cases any way it wants. The Constitution clearly gives it that authority. But if a company's assets are seized or its executives jailed in accordance with a law, SCOTUS can decide its not constitutional in court all day long. The executive branch can still keep those executives imprisoned, it can retain those assets. And it can do so as long as Congress funds it."

    You're forgetting habeus corpus, contained in article one. Congress itself granted all federal courts jurisdiction to release prisoners held by any government entity within the country.

    That means, since all federal courts are bound to apply Citizens United, any executive held imprisoned could apply for a writ of habeus corpus. If it were granted, and the executive branch continued to hold them imprisoned, that would become an illegal act, under international law. It's funny how the left trumpets international law when it comes to Iraq, but now you're ignoring it.

    Besides, what you're advocating is totalitarianism. You might be happy with it now, with a Democratic government, but the same precedent would extend to Republicans if/when they came to power, and I suspect that would be less to your liking (imagine, for example, if the Republicans decided, extending your logic, to imprison all registered Democrats and refuse to release them).

    You can say I'm "stuck on "that's the way we've always done it.", but what that translates to is I'm stuck on "that's the only way to avoid anarchy", which is what happens if we start down a path where court holdings have no weight. I've yet to see a cogent argument why that wouldn't be the case.

    (Heck, even the President isn't arguing for what you are, and he clearly hates the Citizens United decision. Maybe because he sees the dangers inherent in your argument)

    "You've still offered no justification for the necessity of SCOTUS having exclusive authority other than that's what SCOTUS decided."

    Except I have. As I said, the decision was based on the logic that somebody has to decide on the constitutionality of actions. Your idea that each body is equally responsible doesn't give a practical answer. Are you suggesting that Congress should decide if its own legislation is constitutional? Are you also suggesting that a President should decide if his actions are within the limits prescribed in the Constitution? Again, all that does is open a huge door for totalitarianism, when one considers what powers the President already has.

    Besides, as I pointed out, that has no constitutional basis. There is nothing in the document that gives Congress or the President that power, and there are far more limits on their power than on the power of SCOTUS. Technically, as article three is so vague, there are no limits on the power of the SCOTUS so long as it doesn't violate the text contained in the constitution. Hence why an amendment is the correct procedure when faced with Citizens United.

    "There is nothing in the constitution making SCOTUS opinions binding on everyone else, nothing."

    Except there is. I'll quote it again for you:

    "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,"

    ALL CASES ARISING UNDER THIS CONSTITUTION. It couldn't be any clearer.

    In any case arising under the constitution, the SCOTUS has the power to decide what the law is (that's what "judicial power" means). If they decide what the law is, then that's what the law is. It's not rocket science.

    "You deride the actual law as "theory""

    Ok, you've been using the "actual law" argument a lot. Since I've actually provided both precedent and constitutional authority for my argument, please, tell me, what "actual law" am I missing? Please quote from an authority other than your opinion. A statute, constitutional clause, anything with some weight to it. Your analysis of the constitution is not law, it's just your opinion. And you're entitled to it, and to express it (freedom of expression is a right I hold in the highest esteem) but unless you're a judge, your legal opinion isn't law.

    "As for your challenge to enforce a law in any other way than judicial what makes you think adjudication must be in federal court? Appeal boards, arbitration and military commissions immediately spring to mind."

    Except the other party to the proceeding has the right to appeal to federal courts. Oh right, I forgot, the executive and legislative branches can act in illegal ways to prevent a citizens of the United States from exercising their rights under the constitution, yet the SCOTUS gets torn apart for following the law in a manner that allows citizens of the United States to exercise their rights. And I'm the one who's being illogical? Where's your consistency?

    "And its exactly what the constitution intended."

    Except it's not. That's why they gave the power to amend the document. Don't forget, I also proposed Obama could "pull an FDR". What I'm not proposing, however, is merely ignoring federal law, because that's a dangerous precedent to set. I'm all for taking active steps to work around Citizens United to achieve the same goal. Work WITHIN the constitution.

    "Though it probably never envisioned a SCOTUS insane enough to go there, I doubt it envisioned a congress and president who would simply roll over and play dead either."

    Again, they don't have to. It's called a constitutional amendment. They also gave the President appointive power in the judiciary to ensure he didn't have to "play dead". There are plenty of better ways to achieve the goals you want that don't involve creating a system where people can ignore the law.

    "Now let me challenge you. Since you think that a constitutional amendment's needed to correct SCOTUS just how would you write an amendment that they simply could not "interpret" as unconstitutional or "really" meaning that they can in fact do whatever they please?"

    Except they can't. The SCOTUS is still bound by the text of the constitution, as, using your words (correctly, I might add), it is the highest law in the land. So long as the text is unambiguous, there's no scope for "interpretation", and nor does the constitution give them the power to strike down any validly passed amendments. So as long as The President and Congress follow what the constitution says, and draft the amendment well, it'll stand up.

    "I suggest, again, that your arguments are circular and illogical. That you would give unfettered control to SCOTUS with no recourse if they abuse their position."

    And I counter that yours have plenty of logic but no legal basis. Nobody said the law was logical. Worse yet, your arguments are dangerous. You say "It has no army, no police, no way to enforce rulings. None." That could apply to the President too. The President has an army, has agencies like the CIA and FBI, only as long as those bodies behave in "the way we've always done it"

    If you're suggesting the President can ignore the Supreme Court and THE LAW, because it suits him, then the same applies to the army. Their only reason to listen to the President is law, but if he can ignore the law, so can they. That's a dangerous precedent to set. Without law, there's nothing to stop anyone, civilians included, from doing anything they please.

    Worse, you misstate my position again. Which is why I'm going to bow out now. I never once said SCOTUS would have unfettered control, or that the other two parts of government had no recourse. I said that an amendment was that recourse. If the Democrats could persuade the Republicans of the validity of their amendment, they could pass it. And SCOTUS would be forced to apply it, just as they have applied every other constitutional amendment in literal terms. You say how could you avoid interpretation? You draft the amendment in an unambiguous manner, as many have been in the past.

    Article three was deliberately left ambiguous, one could argue, to give SCOTUS the power it's since claimed through Marbury. After all, the founding fathers were intelligent men, and the rest of the constitution is fairly well drafted, in extreme amounts of detail. Why the lack of detail here?

    As I said in my last comment, that was my last attempt to explain it to you, and this is merely my rebuttal to the points you raised. We're going around in circles and getting nowhere. I'll now bow to your greater knowledge and understanding of Constitutional Law. I'm out.

  24. [24] 
    Michale wrote:

    LewDan,


    I agree that SCOTUS can run the courts anyway it wants, decide its cases any way it wants. The Constitution clearly gives it that authority. But if a company's assets are seized or its executives jailed in accordance with a law, SCOTUS can decide its not constitutional in court all day long. The executive branch can still keep those executives imprisoned, it can retain those assets. And it can do so as long as Congress funds it.

    As we saw in Honduras, the courts can do quite a bit.


    What's SCOTUS going to do? It has no army, no police, no way to enforce rulings. None.

    Maybe I am missing the whole point here, but I would think that the SCOTUS has every Federal, State and Local police agency in the nation to enforce it's rulings, not to mention the Congress of the United States.

    If the SCOTUS determines that the POTUS has violated the US Constitution and the POTUS continues the violations, then Congress is bound to abide by the SCOTUS rulings and begin impeachment.

    Example: If Bush had continued his actions vis a vis terrorism without securing the MCA, then Congress would have HAD to begin impeachment hearings. The American people would have DEMANDED it.

    THAT is the power that the SCOTUS has in the here and now..

    Michale.....

  25. [25] 
    Moderate wrote:

    Hadn't even thought of Honduras Michale. Great example of what happens if the military chooses to side with the courts over their Commander In Chief.

    Good points regarding the MCA too.

    As for the SCOTUS having the police agencies to enforce their opinions, that largely depends on the leaders of each of those agencies. If the head of the agency agrees with the SCOTUS decision and not the POTUS, they can act to enforce the decision, but if they agree with the POTUS, then, to give LewDan his dues, there wouldn't be much the SCOTUS could do about it.

    Then again, that could lead a coup like in Honduras.

  26. [26] 
    Moderate wrote:

    Interesting article on SCOTUSblog about what can be done in the wake of the case in order to actually retain some of the positives whilst protecting against the negatives:

    http://www.scotusblog.com/2010/01/what-should-congress-do-about-citizens-united/

  27. [27] 
    Moderate wrote:

    According to SCOTUSblog the SpeechNow case not only indicates that courts are accepting the Citizens United decision unquestioningly, but that there is some evidence to suggest they may even build on the decision:

    http://www.scotusblog.com/2010/01/the-new-world-of-campaign-finance-law/

    Sorry to be the bearer of bad news, Chris.

  28. [28] 
    LewDan wrote:

    Let me try one last time.

    The courts don't control a single police agency Michale they are all under the Justice Department run by the President as does the military. If the head of the agency agrees with SCOTUS and acts accordingly we have a coup attempt.

    You and Moderate keep basing all your arguments on the notion that SCOTUS has supreme authority because it gave it to itself and it had every right to do so because it said it did.

    If the President and Congress are deaf, dumb and blind to the constitution and are required to do whatever SCOTUS tells them then SCOTUS controls the country. You pass a constitutional amendment telling SCOTUS no, which SCOTUS says is unconstitutional and, according to you, the President and Congress are precluded from reading the constitution and saying "yes it is." If SCOTUS says its unconstitutional it is. There is no recourse. None. And any claim that congress and the President are allowed to actually open their eyes and read the constitution for themselves when there is a constitutional amendment to correct SOCTUS is REALLY amending the constitution, much like the claim the SCOTUS can only be corrected by constitutional amendment. (Because, obviously they can never be wrong or intentionally dishonest. If they say something is unconstitutional the OBVIOUSLY the only recourse is to amend the constitution—and ask them again if the amendment is all right.)

    And you honestly think the slightly paranoid gentlemen who founded this nation went to great lengths to ensure the federal government couldn't dominate, the states couldn't dominate, the President couldn't dominate, and the Congress couldn't dominate only to hand undisputed dominion to to the nine unelected justices of SCOTUS for the length of their natural lives with no checks whatsoever? Because that's what those same nine unelected individuals said happened?

    >Moderate,

    I've been remiss to not address you point by point. We're clear on each others positions there's no reason to keep restating them but as to your individual points:

    Re habeus corpus, The courts can order the justice department to release prisoners. The court can't release anyone. And the justice dept., by order of the constitution obeys the President not the courts and congress has no authority to mandate otherwise even if it wanted to. And we just had a President and Congress demonstrate exactly how little power the courts have over habeus corpus if Congress and the President decide otherwise. As for international law, now you think other nations will invade to support your precious SCOTUS? They way they cleaned our clocks over torturing people, kidnapping people of the streets of Italy, disappearing people into "black" prisons? Over a purely internal matter? we are a sovereign nation. International law can't even force the courts in Nigeria to function but you think it compels us? Because we've agreed to let the international community run our country for us?

    You have a funny definition of totalitarianism. 5 men dictating to the rest of the country isn't totalitarianism? But the President and six-hundred odd elected representatives of the 100-million citizens refusing to obey is totalitarianism?

    Obeying the actual law, as written, the "theoretical" law is "anarchy?"

    And SCOTUS can't decide a constitutional amendment is unconstitutional? The constitution requires amendments be ratified by the states but SCOTUS can't interfere in an election? They can't refuse to recognize election results? They can't impose injunctions preventing votes from being counted? They can't stop vote counting until hours before their self-imposed deadline for counting votes?

    Because SCOTUS is bound by the text of the constitution? The text that requires grand juries so that the government can't just imprison people without civilian oversight? Unless a judge decides to take offense and declare someone is in contempt of court. Then, of course, its off to jail. No grand jury required since the constitutional text clearly doesn't apply to the courts. SCOTUS said so!

    And while the text of the constitution says congress is regulate interstate commerce, legal entities created by the government for the purpose of congress cannot be regulated by congress because SCOTUS has decided that they are people not legal fictions, that spending money is speech not commerce, that the government can create an entity but that doesn't give it a right to regulate it. Now some clown growing a weed in his bedroom so he can smoke it—THAT'S interstate commerce! No problem at all with regulating that!

    And while the text of the constitution says the government cannot simply seize a persons property without due process including grand-jury indictments to SCOTUS the government claiming property is related to drug trafficking is all the due process anyone could ever want. So the government can immediately seize anything from anyone as long as the utter the magic words. And the government needn't necessarily even return said property if the "trafficking" charges proves baseless.—Because SCOTUS says so and the HAVE to follow the text of the constitution.

    I could go on forever. You are clearly unable to see that if SCOTUS alone is the arbiter of what's constitutional the the constitution including its provisions for amendment are useless. That no sane individual who didn't want SCOTUS to rule the country would establish such a system. That every single one of your arguments boils down to "because that's what SCOTUS says." And you are clearly unfamiliar with the premise that "absolute power corrupts absolutely."

    You seem to have been trained in the law. I'm not. If so you've been trained in the rules established by SCOTUS. In the justifications given by SCOTUS. I've no doubt that your legal opinions are at least tenable and may well be legally correct, according to SCOTUS.

    But I'm a computer engineer. Unlike lawyer's I consider a premise to be either applicable and rational in all situations or faulty. Unlike lawyers I do not enjoy the luxury of forming patchwork logic by adding caveats on a case by case basis or even inverting previous decisions and still consider being able to consider my original premise sound. I'm willing to agree to disagree but I find it telling that your response to my arguments is "And I counter that yours have plenty of logic but no legal basis. Nobody said the law was logical."

    Only a lawyer would find no problem or contradiction with illogical laws. Only a lawyer would think that illogical laws really have a legitimate basis that everyone must respect. But yes, my position IS dangerous, and I do not advocate it lightly.

    But because lawyers think semantics can redefine reality. That calling it "interpretation" can make amending the constitution all right and legal. That everyone MUST obey the constitution, even SCOTUS, although SCOTUS alone gets to decide just what the constitution says, and going by the actual text instead of following SCOTUS is just and dangerous theory because mere mortals can only read what's actually written and apply common-sense and logic, but that's not the law. What's written isn't the law, only what SCOTUS says is the law.

    And because lawyers think that way, because they are trained that way, because that is the kind of legal system SCOTUS has created and because the good justices are themselves lawyers who have been trained that way and think that way I believe it may well be necessary to take the dangerous steps needed to depose the self-declared omnipotents who have decided that only they can interpret the mystic runes handed down from the ancients that is the constitution and attempt to return logic and rationality, as well as a healthy dose of much needed honesty, back into the judicial system.

    If we have to do that by constitutional amendment then that only amendment that makes any sense is one dissolving and reconstituting SCOTUS. For that to be possible the President and Congress have to be willing to look at and obey the law and not SCOTUS making their own constitutional determinations or SCOTUS can simply declare any amendment unconstitutional. To me that is self-evident. And if the President and Congress can do that, and its LEGAL, then they can take steps on their own initiative without needing a constitution amendment. But that's only logical, its certainly not necessarily the law—according to SCOTUS.

  29. [29] 
    Moderate wrote:

    "I'm willing to agree to disagree but I find it telling that your response to my arguments is "And I counter that yours have plenty of logic but no legal basis. Nobody said the law was logical."

    Only a lawyer would find no problem or contradiction with illogical laws. Only a lawyer would think that illogical laws really have a legitimate basis that everyone must respect. But yes, my position IS dangerous, and I do not advocate it lightly."

    I'm willing to agree to disagree. Allow me, however, to simply clarify one thing. Not once did I say that there was no problem with illogical laws. Just like the law is meant to be just, but isn't always, logical laws are certainly what any legal system strives for. All I was saying is that the law needn't necessarily be logical to remain the law. It's part of the social contract.

    "going by the actual text instead of following SCOTUS is just and dangerous theory "

    Again, I think you're missing where I pointed out that the actual text itself is what made SCOTUS the final arbiter. You're the one who's arguing that you know what they really meant. The text contains no limit on SCOTUS' powers, yet you say the paranoia of the founding fathers requires that there must be.

    Meanwhile the same document expressly lists the powers of the President and Congress one by one, clearly intending to set limits for their authority.

    "or SCOTUS can simply declare any amendment unconstitutional"

    Yet that isn't contained anywhere in the part of the constitution dealing with the amendment procedure. Now who's "interpreting" the constitution?

    As I said, I'm out. I see no need to convince you further, and we've agreed to disagree. Clearly we're both entrenched in our views and won't be able to find a consensus (and that needn't be a bad thing). I'm not going to argue with you any further, though, as I think you're right; we're clear on each other's positions. We're not adding anything more to the healthy discourse anymore.

  30. [30] 
    Moderate wrote:

    By the way, for the record, I'd like to point out that the last comment was merely to accept the olive branch you put out. I'd like to think we can engage in healthy discussion in the future and thought it would be rude to ignore the gesture.

    While I was there I figured I'd clarify what I still believe to be misrepresentations of my argument. I'd hope, now that we've reached an impasse, that you will stop doing that, but even so, I've decided that I've stated my position clearly enough several times that it ought to stand for itself. If not, I won't lose any sleep.

    As far as I'm concerned my part in the debate is now over. I'd like to thank you for a heated, passionate and well-reasoned discussion. The "lawyer" jibes, however, were close to, though they probably didn't cross, the line between a healthy discussion and ad hominems. I think given the passions on both sides it's best to leave it at that. I'd like to think we can get along in the future.

  31. [31] 
    Michale wrote:

    The courts don't control a single police agency Michale they are all under the Justice Department run by the President as does the military. If the head of the agency agrees with SCOTUS and acts accordingly we have a coup attempt.

    Not at all..

    As we saw in Honduras, if the President violates the Constitution as interpreted by the Supreme Court and the military and Congress supports the Court's ruling, then it is NOT a coup, but rather a lawful and constitutional transfer of power.

    Michale.....

  32. [32] 
    LewDan wrote:

    Michale,

    Did the Hondurans have a system of government composed of three equal branches too? I've never suggested individuals should decide for themselves whether or not to obey SCOTUS.

    I've simply said that having three equal branches of government does not mean two must obey the third. You're the only one who keeps suggesting individuals may choose sides when nothing in the constitution makes ordinary citizens equal to the SCOTUS, the Congress and the President. And that under our constitution the President acting like and equal branch of government rather than a subservient branch of the courts is NOT a violation of the constitution or a coup attempt.

  33. [33] 
    LewDan wrote:

    Moderate,

    I apologize for the lawyer jibes. I don't have much respect for our legal profession and I'll probably repeat my error in the future but I don't mean to be personally insulting.

    Michale and I have been through this before. We disagree but there's nothing more to it.

  34. [34] 
    Chris Weigant wrote:

    OK, a couple of things. There's no way I'm going to get to everyone and every point made. The notion, however, that unions are more powerful than corporations is downright laughable. Unions were the biggest political force behind the public option. If they truly were all that powerful, it would be in both the Senate and House bills. It's not. The corporations wanted it stripped out, and the Senate complied. Case closed. If any further proof is needed, the tax on Cadillac plans IS still in the Senate bill.

    Not to say that they're powerless, but they are on the decline, that's for sure. The unions' power in the 1950s was multiple times what it is now, which led to the rise of suburbia and the middle class lifestyle as we know it. Back then, one salary was enough to purchase a house, raise a family, and send a child to college. Now, TWO salaries doesn't even buy the same economic status. That right there is the decline of the unions.

    Moderate, you live in England, so you'll relate to this. In America, no worker is guaranteed even ONE DAY of sick pay, or vacation pay. None. Two weeks paid vacation is a "really good job." Three weeks is the province of only the higher-paid white-collar workforce. Compare that to Europe, where even the LOWEST paid full time worker in a fast food joint is guaranteed FIVE or SIX weeks paid vacation BY LAW, every year. Unions here, as compared to European unions, are a shadow of the strength.

    But then I was raised with a union mom, so I admit I may be biased.

    Moderate, while I respect anyone who argues today that Marbury v. Madison was wrongly decided, you are arguing against almost the entirety of American legal history in doing so, since it was such a bedrock case. Sure, you can call it a "power grab" by the Supremes (it was) but it is so settled into our legal fabric that it ain't gonna change any time soon.

    LewDan actually seems to be in agreement, as he's a pretty strict original intent type of guy, which I also can respect.

    But one or the other of you REALLY needs to bring up Andrew Jackson and the Bank of the US. SCOTUS basically slapped Jackson in the face, and Jackson reacted with something like: "how many troops does the Supreme Court have to enforce its ruling?" He then ignored the ruling completely.

    Seriously, someone has to look this up and work it into their argument, soon!

    In any case, when the branches collide in power struggles, it is usually called a "constitutional crisis" for good reason.

    Michale, I would argue that what happened in Honduras was either a severe "constitutional crisis" or, possibly, a "bloodless coup supported by the judiciary." But it's really splitting hairs, either way.

    And, Michale (and Moderate will fully understand this if he truly is in touch with the British zeitgeist), you should know that uttering "Sylvester Stallone" in the same sentence as "Judge Dredd" is sacrilige to followers of the original comic. Just to let you know, for future reference. My wife, incidentally, has a complete collection of over 1600 "2000AD" progs (comics, published weekly, so the issues add up quick), so I know of what I speak.

    And Dredd would immediately cite you for daring to allude to Stallone's "impersonating a Judge." Three years in the cubes for you, punk.

    "I AM the law!" indeed.

    Heh.

    -CW

  35. [35] 
    Michale wrote:

    LewDan

    Did the Hondurans have a system of government composed of three equal branches too? I've never suggested individuals should decide for themselves whether or not to obey SCOTUS.

    As far as I know, Honduras' form of government is very similar to ours.

    According to the CIA FactBook, Honduras is a multi-party democratic constitutional republic but has only one legislative house. It does have Executive, Legislative and Judicial branches, so it's quite similar to ours.

    In this instance, the President of Honduras tried to hold a special referendum. Their Supreme Court said, "Nope, can't do it. It's against our Constitution."

    President Zelaya flipped the court the bird and said he was gonna do it anyways. The court said, "Oh yea??" and their Congress impeached Zelaya. The court ordered the military to take Zelaya into custody and the military obeyed. Then the military fudged a little and exiled Zelaya instead of maintaining custody.

    But other than that minor screw-up, everything was perfectly legal and wholly within the Honduras Constitution.

    In short, the Honduran Supreme Court wielded supreme power over the government.

    As I mentioned above, if Bush had flipped the bird to the SCOTUS over the terrorist interrogation issue, rather than directing Congress to pass the MCA, then we could have had the EXACT same situation occur here..

    And, once again, it would have been perfectly legal and Constitutional..

    And that under our constitution the President acting like and equal branch of government rather than a subservient branch of the courts is NOT a violation of the constitution or a coup attempt.

    Unless such actions violate the US Constitution...

    Let's approach this from a different angle.

    It is your opinion (I believe) that the SCOTUS is NOT the final arbiter of the US Constitution.

    If not the SCOTUS, then who? Who decides what the US Constitution means??

    CW,

    Consider me properly chastised over Dredd. Mea Culpa.. :D

    But I object to your characterization of the Honduras incident as anything other than a lawful and constitutional transfer of power.

    Other than the minor hiccup of exiling Zelaya, rather than imprisoning him (an act thoroughly understandable, given the passions in play) nothing that occurred could be labeled as coup-ish... (is that even a word)??

    Again, I point to the "what if" scenario whereas Bush ignored the SCOTUS and went ahead with his policies against terrorists. We could have found ourselves in the EXACT situation that Honduras was in.

    A duly elected president flouting his country's constitution and ignoring the rule of law, as it was laid down by said country's Supreme Court..

    Michale.....

  36. [36] 
    Moderate wrote:

    LewDan,

    Water under the bridge (do you guys have that saying over there?). As I said before, I didn't think they crossed any line, but I could tell it was getting too heated and besides, as you said, we're both clear on each other's positions and we weren't ever going to see eye-to-eye on this, so best to agree to disagree. Honestly, no hard feelings (do you have that saying too?)

    "Moderate, you live in England, so you'll relate to this. In America, no worker is guaranteed even ONE DAY of sick pay, or vacation pay. None. Two weeks paid vacation is a "really good job." Three weeks is the province of only the higher-paid white-collar workforce."

    Wow, that's pretty poor.

    "Compare that to Europe, where even the LOWEST paid full time worker in a fast food joint is guaranteed FIVE or SIX weeks paid vacation BY LAW, every year."

    To be fair, that's a fairly new development. Until recently it was down at 21 days (approximately four weeks). I suspect, though, that we have less public holidays than you, but I could be wrong about that. We have eight holidays, and I think you guys have 11 federal holidays, but it's not a huge difference.

    It also owes more to the influence of unions in other European countries like Germany and France than any influence of unions in the UK. Unions are even less powerful here than they are in the States, but the EU means that German and French unions have an influence on our laws too. One of the few things I like about EU membership (along with free movement of people).

    But yeah, that stinks for US workers. Still, you do earn more for equivalent jobs, and pay less tax for equivalent earnings...I'm still jealous of you lot.

    "Moderate, while I respect anyone who argues today that Marbury v. Madison was wrongly decided, you are arguing against almost the entirety of American legal history in doing so, since it was such a bedrock case. Sure, you can call it a "power grab" by the Supremes (it was) but it is so settled into our legal fabric that it ain't gonna change any time soon."

    Heh, actually that was precisely my argument. That much as I disagree with it (I agree with LewDan that it was circular logic and a power grab, though I can also acknowledge the reason why, faced with such a hugely ambiguous clause, they decided how they did. There really was no alternative.) it's such a deep-rooted part of the US legal system that uprooting it would cause a lot of collateral damage that I don't think is worth it when there are several other options for the President and Congress to choose from.

    I'm actually, funnily enough, a strict original intent guy, but there are times that I think that approach doesn't work. Abortion or Civil Rights legislation wouldn't exist without a broader interpretation. And both served a greater good that I think justified "interpretation". Then there's passages of the Constitution like the free exercise and establishment clauses in article one, where there's two rights that clash and courts must balance them.

    So I'm not in favour of judicial activism (and there are some who'd argue that it was the minority in Citizens United who were the activists; I read a piece, written by Professor Smith, former chairman of the FEC, on SCOTUSblog to that effect), but I do recognise times where it's needed.

    Actually you're wrong about Andrew Jackson in two ways. Firstly, that quote wasn't to do with the Bank of the US. In McCulloch v Maryland the SCOTUS was dealing with a Maryland attempt to challenge the bank's charter, which the SCOTUS ruled against. Whilst Jackson clearly disagreed with the bank's charter, he didn't refuse to enforce McCulloch. What he did was refuse to re-charter the bank in 1836, but this was a battle with Congress (who couldn't pass an act renewing the charter thanks to one of Jackson's many vetoes) not with the SCOTUS. And the veto was well within his powers.

    He did, however, clash with the SCOTUS, and say something similar to what you said. It was to do with the Cherokee (Worcester v Georgia). More importantly, it's an often misquoted line; he never actually said that. What he said was:

    "The decision of the Supreme Court has fell still born and they find that they cannot coerce Georgia to yield its mandate"

    Technically all he was saying was that he had no power to enforce the decision (not that he would have been in favour of doing so anyway; don't forget, he'd fought the Indians from Georgia not once but twice during his time in the military). He actually didn't, unless the Georgia courts defied the SCOTUS, which they didn't (well, they stretched out the process for a whole year, but they did abide by the decision eventually).

    In deference to states' rights, when SCOTUS makes a decision, they're meant to bat it back down to the states, and if the states act, that the end of it.

    Yet again, technically Jackson was acting within his powers. Now if Georgia had refused to act and openly defied the SCOTUS holding, and Jackson had (as he probably would have) sat on his hands, that'd be precedent.

    But since that never happened, we have no idea what would've happened if he'd done so. Congress was with the SCOTUS, and two out of three would've made Jackson's position difficult. He was stubborn enough, though, to insist.

    Being a war hero, chances are the military would've sided with him.

    And yeah, I agree that there'd be a constitutional crisis if either the situation in Honduras were repeated in the US (Congress and SCOTUS act to depose a sitting President without impeachment first) or if Congress and the President sided to ignore SCOTUS.

    I can certainly see where LewDan's coming from, I just think a constitutional crisis should always be a last resort, only if the SCOTUS were to behave in a truly dictatorial way. At the moment this court hasn't even been as stubborn as the court which opposed FDR's New Deal. If it were to be, then I think the case for uprooting the federal court system becomes much stronger.

    It would be like if SCOTUS and Congress conspired to depose Jackson just because he didn't enforce Worcester (which he couldn't do legally anyway).

    Ignoring SCOTUS decisions just has too many long-term implications (like I said, if a party like the Nazis were to win not only the Presidency but also the Congress, as they did in Germany, it would take the insulated Court to stand up to them) for me to agree with LewDan's approach, but I recognise the basis for it, and there could arise a situation where it's warranted.

    Anyway, I agreed not to argue this anymore, so I'll leave it at that.

    Stallone desecrated Judge Dredd. I actually own a load of 2000AD comics myself Chris, used to be a HUGE fan back in the day. Awesome comic.

  37. [37] 
    LewDan wrote:

    Michale,

    I believe that the reason we have three co-equal branches of government is to prevent any one from seizing complete power, and to prevent the gridlock only two would create (like in Congress.)

    So according to your description of Honduras I'd have to say that that is exactly how I believe our system of government is supposed to act; not because it was the judiciary making the decisions but because, as I've always advocated, it was the majority rule of two of the three branches.

    I've never advocated any single branch should dominate and I've certainly never called for civil war and individuals choosing sides. I simply believe that Congress and the President trump the Supreme Court as surely as Congress ans the Judiciary trumped the President in Honduras.

    I think the founders believed in majority rule (up to a point) and distinctly rejected dictatorships. I find the idea that they intended for 5 unelected lifetime appointees to dictate terms to the rest of the country (whether they call it "interpreting the Constitution" or not)ludicrous.

    I also find the notion that the only remedy to SCOTUS opinions is a Constitutional amendment dangerous and absurd. Supreme Court Justices are not saintly religious prophets who cannot misspeak. Just because they say their interpretation is what the Constitution says does not make it true. If it is true then a constitutional amendment is required. But constitutional amendments are for correcting the Constitution NOT SCOTUS.

  38. [38] 
    Moderate wrote:

    Michale,

    According to what I've read, Congress impeached him only because those that opposed him had the military behind them and basically pressured the rest of them into going along with it. If so, that impeachment is of debatable legality. Besides, once a President is impeached, there's supposed to be due process, such as a trial, to allow them to defend themselves.

    Besides, why were the military involved? It would've been better, if the whole process was legal, for him to be arrested by official law enforcement agents. Use of the military, combined with the exile rather than trial, would suggest it was a bloodless coup rather than a legitimate impeachment.

  39. [39] 
    LewDan wrote:

    I would hope that if confronted by the President and Congress that SCOTUS would show the good sense to acquiesce. If not, if they believe they have the backing to overcome both other branches then the constitutional crisis is more than warranted as SCOTUS believes it can create a dictatorship.

    Following precedent is vital to stable and predictable law but it is not law. It does not require new law to change if circumstances change. Frankly, commonsense dictates that even if it were law it must be ignored at need, just as real laws are.

    I'm not saying the Supreme Court shouldn't be the arbiter of what's Constitutional, I'm saying that they shouldn't be allowed to believe it is their undisputed right. That even if they abuse their position, mistakenly or dishonestly misinterpret the Constitution, that there is nothing anyone can do about it. And lets be honest, the amendment process is intentionally about as difficult and lengthy as possible so that it won't be used trivially. To set the bar for correcting SCOTUS so much higher than that for correcting any other branch of government is yet another way of making SCOTUS far more than equal to the other two.

    There is no reason that simply making it clear that SCOTUS enjoys the privilege of being the final arbiter of constitutional issues with the consent of the President and Congress but may be overruled by the other two should somehow destroy the fabric of the American Justice system. Accepting that SCOTUS' word IS law, however, does destroy our system of government as a democratic republic with three co-equal branches is replaced by dictatorship.

  40. [40] 
    Michale wrote:

    Moderate,

    According to what I've read, Congress impeached him only because those that opposed him had the military behind them and basically pressured the rest of them into going along with it. If so, that impeachment is of debatable legality.

    True..

    But just playing Lucifer's advocate here.

    It can be argued that Bush "pressured" Congress to pass the MCA thereby subjourning Congress to oppose the SCOTUS ruling and making the MCA of "debatable legality"..

    It's the Golden Rule... Whomever has the "gold" (in these cases, the clout) makes the rules.

    Considering the history of REAL coups in the region, I think some leeway should be granted to Honduras. They could have gone about it many different ways, most of those much MUCH worse.

    Besides, once a President is impeached, there's supposed to be due process, such as a trial, to allow them to defend themselves.

    Yea, true.. The whole exiled thing was a bit of an improv. But, as I indicated, with passions what they were, the interim government probably felt that removing Zelaya was the best option to maintain the peace.

    In short, the interim government wanted to AVOID a fight, not insist on one.

    Michale.....

  41. [41] 
    Moderate wrote:

    "I would hope that if confronted by the President and Congress that SCOTUS would show the good sense to acquiesce."

    Was that in response to the Andrew Jackson stuff? Because in that case it was Congress and SCOTUS that were together, and the President that ignored them. Just thought I'd clarify the situation.

    "Following precedent is vital to stable and predictable law but it is not law. It does not require new law to change if circumstances change. Frankly, commonsense dictates that even if it were law it must be ignored at need, just as real laws are."

    Weirdly enough, we're getting closer to agreement here. I still maintain that in any common law system, by definition, precedent is law (principle of stare decisis is what defines a common law system), but I do agree with you that if circumstances dictate, precedent can change without the need for any new legislation. Not sure that "real laws" are ignored though.

    "I'm not saying the Supreme Court shouldn't be the arbiter of what's Constitutional, I'm saying that they shouldn't be allowed to believe it is their undisputed right. That even if they abuse their position, mistakenly or dishonestly misinterpret the Constitution, that there is nothing anyone can do about it"

    Guess what? I don't disagree with a word of that. The Supreme Court's role as supreme arbiter does not mean it's undisputed, that if they abuse their position there's nothing anyone can do about it. I wouldn't go so far as to say a mistaken misinterpretation would qualify, but just as the President, should he exceed his power, can be impeached, if the SCOTUS acts in a dictatorial fashion (such as what it did under FDR) the other two bodies must, surely, have the right to do something about it.

    Not quite sure Citizens United qualifies, though, in my humble opinion.

    "And lets be honest, the amendment process is intentionally about as difficult and lengthy as possible so that it won't be used trivially. To set the bar for correcting SCOTUS so much higher than that for correcting any other branch of government is yet another way of making SCOTUS far more than equal to the other two."

    I agree with you about the amendment process. Which is why I still wonder why the founding fathers didn't expressly provide a method to correct any SCOTUS abuse of power. It would certainly clear all this mess up.

    To be fair, isn't the SCOTUS already far more equal? They hold their roles for life, they're unelected and unaccountable for their actions, so long as they're legal and impeachment is just as hard (if not harder) than with Presidents.

    Actually, the only SCOTUS Justice to be impeached (and acquitted) was Samuel Chase, and he was CLEARLY partisan, yet he was acquitted by a Congress controlled by the same party as President Jefferson, who was actually the one who wanted him impeached.

    That case actually set a precedent that the judiciary were allowed to engage in partisan politics, meaning it wasn't grounds for impeachment (so long as the quality of judging wasn't sufficiently poor to justify impeachment). In fact it's attributed as being the case that established the principle that SCOTUS is insulated from the power of the Executive or Legislative branches.

    Glad that I looked that up just now, because it's so pertinent to this debate we're having. Does the Chase impeachment suggest that impeachment of SCOTUS for Citizens United would fail? Probably, now I think about it.

    Anyway...I think we're actually more in agreement than we thought before. Of course there's still areas of disagreement, but it's good to know that it's not like we're coming at things from polar opposites.

  42. [42] 
    Moderate wrote:

    Apropos of nothing, I really have to stop using the word "actually" so much...

  43. [43] 
    LewDan wrote:

    Moderate,

    Its always been my understanding that Justices are appointed, and for life, to encourage them to be apolitical and nonpartisan to maintain their impartiality. But because the founders feared dictators they recognized that a handful of unelected individuals with power for life were also a grave danger to democracy, which is primarily why they were intentionally denied any means of enforcement. Which is why it was Marbury which tends to make them more than equal, not the founders or the constitution. And that's why I think we should be very cognizant, as the founders were, of the danger they represent.

    And, no, Citizens United isn't grounds for any sort of constitutional crises, a pattern of behavior, however is. I don't think we're there yet but I do think Bush v Gore a huge red flag. And the fact that its beginning to look like, particularly in cases of "x v corporation," the opinion of the court can reliably be predicted without recourse to particulars of the case indicates that they are less than deserving of full faith and credit.

    I'm sure that many will demand far more proof before indicting Supreme Court Justices than they would of accused murderers but they've already proven to me that their oaths meant nothing, that they clearly have agendas, are not open-minded and unbiased, are not really reticent to overturn precedent as they all swore during confirmation and definitely are not constrained by the text of the constitution.

    Just my personal opinions, of course, but not without evidence. I don't expect most, or even many, would agree at this point but my expertise and 40 years experience is in analyzing patterns and extrapolating from them because when the ball actually drops its to late for the information to be of much value.

  44. [44] 
    LewDan wrote:

    BTW Moderate,

    I am a black American.—Trust me, real laws are ignored.

  45. [45] 
    Moderate wrote:

    Yeah, Bush v Gore was controversial, but the argument that the justices decided it on partisan lines doesn't quite fit. Breyer and Souter both held the exact same position (that different counting procedures was unconstitutional, but the deadline for recounts hadn't passed), yet Breyer was a Clinton pick and Souter, being appointed by Bush's father, had the most cause to be biased (well, along with Thomas, but still). It just doesn't make sense.

    Meanwhile Stevens was appointed by a Republican (Ford) but voted entirely in favour of Gore. Not to mention that at the lower level, three of the Justices of the Florida Supreme Court (and none of them were Republican appointees) all reached the exact same decision as the majority in the SCOTUS.

    Don't get me wrong, I supported Gore in 2000 (no, really). Whilst I think that the case was decided correctly, I think the fact that they limited applicability to the facts was incredibly suspect. Either the decision supported by seven Justices (that the different counting methods were unconstitutional) was of general applicability (my view) or not at all. The decision was poor.

    If they'd made it of general applicability, it might've worked a much-needed reform of the US electoral system. I mean, it's disgraceful that there was any doubt over who the President was at all, regardless of which party "won" and which "lost"; this is the richest and most powerful nation on Earth for Christ's sake, and if other countries can get it right, why can't the US?

    By limiting the decision to the facts the SCOTUS raised doubts over whether it would decide the same way if faced with the reverse (Democratic "winner" and the election was contested by a Republican) in the future. I think it would, due to the way Breyer and Souter decided, but doubts persist because the SCOTUS didn't make the decision of general applicability. It's suspect at the very least.

    It's worth bearing in mind that the two people who got the most corporate donations in 2008 were Hillary and Obama; the Republicans were, for once, not the darling of big business. Obama, in particular, was popular on Wall Street (though I bet he isn't anymore with the populist stance in the SOTU).

    So I'm not entirely sure that "corporate spending will favour the GOP" will actually turn out to be true, and like Chris said, I suspect a lot of genuine companies (as opposed to political bodies who choose incorporation for financial benefits) will actually steer clear of advocacy given the currently intense level of partisanship amongst the electorate.

    Pissing off half of your customer base isn't good business.

    Its always been my understanding that Justices are appointed, and for life, to encourage them to be apolitical and nonpartisan to maintain their impartiality.

    that they clearly have agendas, are not open-minded and unbiased

    According to the Chase impeachment there's nothing wrong with partisanship, so long as the ruling makes sense, in terms of the quality of the jurisprudence involved. That's why a case like Bush v Gore makes your case very strong, but a case like Citizens United (that I think does make logical sense) isn't quite as strong in terms of justifying removing SCOTUS Justices.

    Just my personal opinions, of course, but not without evidence. I don't expect most, or even many, would agree at this point but my expertise and 40 years experience is in analyzing patterns and extrapolating from them

    I hope that my earlier comment about your opinion not being law wasn't taken to mean that I considered your opinion somehow less worthy. There's no way I deem anyone's opinion unworthy, I just meant that there is a legal difference between the term "opinion" as applied to a judge and the generic word.

    Your opinion certainly has merit, and some evidence, as you say, I just don't find it entirely persuasive. Which is fine, of course; you don't find mine any more persuasive than I find yours. I hope you're wrong, not because I'd like bragging rights (though that never hurts ;-)) but because if you ARE right, then, as you say, the danger could come too late to do anything about it.

    I am a black American.—Trust me, real laws are ignored.

    You mean by the police? If so, I definitely agree with you. There's a serious problem when institutions with institutional racism are in charge of enforcing the law, because it necessarily means the law will be applied racially.

    Don't get me wrong, I'm not against profiling. I myself was profiled at JFK the last time I was in the States (got taken aside right by the door, asked a bunch of questions and had my bags scanned a second time). I'm of Indian (as in the country, not native American, obviously) origin. Unfortunately I also happen to look like a terrorist in my passport photo. No, really. I had short cropped hair and was growing a beard. To make matters worse, I didn't smile in the photo.

    Now I was born in London, so obviously it wasn't my nationality that got me noticed. Nor was it my name (I'm not a Muslim) or where I was coming from (London). No, the only possible explanation was that it was based on looks.

    Needless to say, I somewhat expect to get stopped (especially as I've been to NYC a LOT in recent years, and that's clear from a quick look at my passport) but I don't actually mind. I feel safer because I know limited resources mean that it's best for law enforcement to target them using some level of profiling.

    What I object to, however, is assumptions about law breaking based on race that lead to not just profiling, but harassment. As yet, I've been fortunate not to suffer that, but I do know some people who raise more red flags (they're of Muslim decent, though most aren't practising Muslims) who have been.

    So LewDan, you do have my sympathies and my attempts to understand.

  46. [46] 
    Osborne Ink wrote:

    Chris, I propose a National Surrender to Corporate Overlords Act. In outline, the NSCOA would add fifty seats to the US Senate by sealed physical bid. The money would be used for clean elections with the rest of Congress and the remainder shared among the several states for the same purpose.

    It would codify the current situation and put lobbyists where they already are, doing what they already do: write laws. It would put a permanent majority of living, breathing human beings in charge of those laws and might actually bring technocrats to the Senate instead of self-dealers. Half the lobbyists in Washington would become Senate staffers and the very word "lobbyist" would lose its negative connotation overnight.

  47. [47] 
    LewDan wrote:

    Moderate,

    I'm imagine you're aware the U.S. has broken every treaty (that I'm aware of) with its indigenous native American population and that treaties are laws? That the Civil Rights Act was passed specifically to give federal courts a bite at the apple when state courts chose to ignore the law?

    I'm not talking about the police ignoring the law, I'm talking about Presidents, Governors, Judges, Sheriffs, Supreme Courts and Congresses. I'm talking about the American judicial system, the Department Of Justice, the federal government and the states.

    One of the reasons so few black people support conservative views is that the fantasy America inhabited by conservatives is not the one we live in. You've stated repeatedly that the Supreme Court is constrained to follow the text of the Constitution. It is not my opinion, it is well established fact that they aren't.

    One of the reasons I hold the legal profession in such disdain is that ever since the civil war legal professionals have justified injustice by elevating process over justice. You consider the only alternative to the established order is anarchy. I consider the existence of the United States one alternative that arose in response to unjust tyranny, and while I consider it deeply flawed its hardly anarchy. So you'll forgive me if I don't share your fear of disrupting the whole government if need be and starting afresh rather than closing my eyes and pretending that all is well until the corruption is so rampant that no one can deny it.

    But I'm biased. We lived and worked within the system for a hundred years and got lynched instead of justice. Things only have begun to improve when we, like the founding fathers themselves, finally got mad as hell and decided not to take it anymore.

    If, for example the notion that SCOTUS can only be corrected by constitutional amendment gains popular acceptance, this democracy is dead. You can call that my opinion because it hasn't happened yet, but I guarantee it, its a fact. The judicial coup begun by the Marshall court may yet take decades to reach fruition but if a handful of unelected appointees with power for life make the law and none can oppose them, its a done deal. And if they can only be corrected by constitutional amendment then there IS no way to oppose them.

    The Founders would've seen that in a heartbeat, they'd lived under despots. Black Americans can see it too, we also have lived under despots. Most remaining bigots have flocked to the Republican party scared to death that Blacks or Latinos, or somebody, may gain enough power to treat them the way they have treated us. Strangely, it never seems to occur to them that their own may one day decide to treat both them and us the same—and not in a good way.

    I once explained to Chris that slavery was the result of capitalism not racism. It was always simple economics. I can tell you exactly what will happen, what is happening, in America as conservatives and SCOTUS herd the gullible sheep that are Americans into the waiting arms of their soon to be corporate masters because my great-grandfather, my grandfather, my father, and I have already lived through it.

    SCOTUS has decided to make corporations the equal of people, only with far more advantages. Much as SCOTUS decided to make itself the equal Congress and the Presidency—only with far more advantages.

    But that's just my opinion. And no, I didn't take anything else away from your comment about opinions not being law. I've no problem with people disagreeing with me, your knowledge, your life experiences are different—and I'm accustomed to being in the minority.

  48. [48] 
    Moderate wrote:

    I know you were being facetious Osborne, but the idea of making lobbying more transparent is, I'm sure we agree, a good one. We all know, as you say, that in truth lobbyists have been writing laws for a long time now.

    LewDan I'm well aware of things like Dred Scott. In no way am I claiming that the judiciary is perfect, far from it, nothing that's man-made ever is. As for the Civil Rights legislation, I know that the state courts were ignoring the law. But the problem is, you're arguing that law is already ignored, so it's OK to ignore it further; I'm arguing that ignoring law is wrong, no matter who's doing it.

    As for Native Americans, everyone knows they got (and largely, still get) an incredibly raw deal in what is, after all, their own country (and theirs first).

    One of the reasons so few black people support conservative views is that the fantasy America inhabited by conservatives is not the one we live in.

    Actually I'd argue one of the reasons so few black people support conservative views is because many people, black and non-black, know the Republican Party (who espouse conservative views more often than the Democrats) as a party that's opposed to civil rights.

    Of course the truth is anything but. There are plenty of reasons for black people to vote for the Democrats, but race isn't one of them. Economic policies, for example, foreign policy, anything, but race?

    The Civil Rights Acts of 1875, 1957 and 1960, were all passed by Republicans. LBJ opposed the 1960 Act, incidentally. When he passed the 1964 act, it won 80% of the votes of Congressional Republicans to only 60% of the votes of Congressional Democrats. The Voting Rights Act of 1965 won 90% support amongst House Republicans (70% with the House Democrats) and both parties shared 80% support rates in the Senate. Bush Jnr recently signed the reauthorisation of the Act.

    When you've been as oppressed for as long as blacks in America have been, it's only natural to want to vote for the party you view as freeing you, and against the party you view as holding you down. I just think the wrong party is being targeted by that.

    One of the reasons I hold the legal profession in such disdain is that ever since the civil war legal professionals have justified injustice by elevating process over justice.

    Allow me to temporarily get my philosophical freak on and ask you, what exactly is "justice"? It means different things to different people. Defence lawyers, for example, will tell you that defending the guilty protects the civil liberties of the innocent (and I think they're right). Meanwhile most non-lawyers would argue that was an injustice.

    Which one is right?

    You consider the only alternative to the established order is anarchy. I consider the existence of the United States one alternative that arose in response to unjust tyranny, and while I consider it deeply flawed its hardly anarchy..

    I never said that the only alternative to the established order is anarchy. My point was simply that ignoring the law creates lawlessness. That's a truism. Anarchy is a synonym for lawlessness. The only alternative to order (note, I didn't say "established") is its opposite, chaos, AKA anarchy.

    Tyranny isn't rule by law (in fact, "unjust tyranny" is a pleonasm). By its definition it contravenes the Rule of Law. It's not anarchy to overthrow a regime where the Rule of Law is not respected and replace it with one where it is; quite the opposite, in fact (since law, in theory, brings order). I'm sure you feel that the SCOTUS is currently breaking the Rule of Law, I simply do not agree with that analysis. We can agree to disagree.

    If, for example the notion that SCOTUS can only be corrected by constitutional amendment gains popular acceptance, this democracy is dead. You can call that my opinion because it hasn't happened yet, but I guarantee it, its a fact.

    But it has happened. It's been that way for 200 years and nobody has batted an eyelid. People know about Bush v Gore, it caused massive uproar, yet nobody questioned the SCOTUS' authority to decide (just the decision itself). Likewise with Citizens United. Are you saying that democracy is dead?

    Most remaining bigots have flocked to the Republican party scared to death that Blacks or Latinos, or somebody, may gain enough power to treat them the way they have treated us.

    I'd say there's an element of truth to this in the birther movement, as it was so clearly the fact that Obama was black that lead to the questions over where he was born. When was the last time anyone asked a white candidate to prove where they were born? Precisely.

    Not sure it rings true for the party in general, though. Besides Bobby Jindal, there's the very real possibility that Rubio will beat Crist. Michael Williams could well be the Republican choice to run for the Texas Senate seat too.

    Strangely, it never seems to occur to them that their own may one day decide to treat both them and us the same—and not in a good way.

    That occurred to me. Which is precisely why I favour an independent SCOTUS, because history shows that it's far more likely for the other two bodies to gain that kind of power. Just look at what the Nazis in Germany did when they won the election thanks to Populist policies.

    Would an independent court have stopped the rise of the Nazis? I don't know. But I certainly think they could've provided another hurdle to overcome. Could a court appointed for life have averted the Holocaust? Maybe, maybe not.

    The thing is, we'll never know, because there never was a court capable of telling Hitler (the President) and the Reichstag (Congress) what to do. Yes, enforcement would've been an issue, but as Honduras shows, sometimes military leaders will side with the courts and enforce their rulings.

    soon to be corporate masters

    And how is that different to now? Ever since the dawn of materialism, corporations have exerted great power. The only way to stop that is a return to spirituality. Which I maintain is even worse. I don't think that corporations are all goodness and light, but they're the lesser of two evils. Corporations are also vehicles of massive job creation.

    SCOTUS has decided to make corporations the equal of people

    Except that's nothing new. Corporations have long had rights under the Bill of Rights, it's been the case for well over a hundred years.

    For example, can a corporation have its property seized (remember, this property is owned, via shareholding, by natural persons) without due process? Of course not. I can just imagine the backlash if people lost their retirement funds or college funds because the government decided to seize the corporation's property without due process.

    From my understanding they could also curtail your fourth amendment rights against unreasonable search and seizure. Can you imagine that if the government can't get a warrant to search you or your premises, they decide to raid your offices because the corporation doesn't have rights? As far as I'm aware, your "reasonably expectation of privacy" wouldn't even arise, as the premises aren't yours.

    I've no problem with people disagreeing with me, your knowledge, your life experiences are different—and I'm accustomed to being in the minority.

    Precisely. I respect your perspective, and I can also see why you hold it (slavery). Disagreement can be incredibly healthy, and I think so far it's been that way for this discussion. Besides, I suspect on this case you're more likely to be in the majority ;-)

  49. [49] 
    Moderate wrote:

    Obviously that's meant to read "reasonable" expectation of privacy.

  50. [50] 
    Moderate wrote:

    Actually, now I think about it, wasn't the whole point of the second amendment to protect against the imposition of the tyranny you describe LewDan?

    So if the SCOTUS were to become the sort of danger you talk about, couldn't a case be made that the founding fathers intended you to have an armed revolution? And that's why there's a right to bear arms at all?

    And isn't it the same conservative wing of the court that decided Citizens that has staunchly protected the second amendment from the liberal wing?

    Now I'm not saying armed revolution is a good thing, but it appears to me that not only does my "solution" to the problem you pose have greater basis in the constitution itself, but furthermore, it would be a "nuclear option" to be used sparingly. By contrast, your idea of "ignoring the law" could become a widespread epidemic and cause coups and revolutions to be everyday events like in South America.

    Just a thought...

  51. [51] 
    LewDan wrote:

    Moderate,

    When I was in school in the '50s when the cold war was especially hot and we began to learn about the Soviet Union I couldn't understand how the Soviet people couldn't see the glaring discrepancies in the party line and even the propagandized facts available to them, then I realized that people believe what they want to believe what they want to believe and that we, Americans, are exactly the same.

    My particular eureka moment undoubtedly had a lot to do with being black at a time just before the Civil Rights Movement when white Americans north and south genuinely believed the south was full of "happy niggers" who were content with segregation but for the disruptivness of "outside agitators."

    The constitution unequivocally states that the Congress is to regulate interstate commerce. The Constitution also stipulates that it may only be amended by acts of congress that are ratified by the states. And yet, SCOTUS has just declared that Congress does not have the authority to regulate interstate commerce in direct contravention of the Constitution.

    It compounds that blatant abuse of its authority and violation of its oaths by "justifying" its "opinion" by claiming the spending of money is "speech," which is an obvious lie. Spending money is not transportation because you can use it to purchase transportation. It is not shelter because you can use it to purchase shelter. It is not medical care because you can use it to purchase medical care. Redefining the English language to suit your purposes is not "interpreting" the Constitution. Striking down Constitutional powers enumerated in the Constitution is not an "interpretation," it is an illegal amendment. It is a violation of the law.

    That the entire country seems willing to, once again, to be collectively deaf, dumb, blind and stupid does not surprise me. No one wants a constitutional crisis by calling out a rouge SCOTUS. So you literally cannot see anything wrong. I get that.

    By contrast, your idea of "ignoring the law" could become a widespread epidemic and cause coups and revolutions to be everyday events like in South America.

    My point exactly. We are in the midst of a judicial coup because ignoring the law has become a widespread epidemic. If the President and the Congress are unwilling or unable to confront and reign in SCOTUS then we will have revolutions. At minimum two, in fact, because SCOTUS will gradually become more and more dictatorial (though claiming commerce is "speech" and corporations are "persons" is pretty dictatorial right now,) and government as we now it will cease to exist until eventually they become intolerable and violence results, it always does.

    But, unfortunately, we agree on yet one more thing, or rather we share an opinion; You believe my views on the law are legal theory, not the law. And I too believe that your views are legal theory and not the law. You believe the law is defined by SCOTUS while I believe the law is defined by the Constitution.

    I accept that I can't change your opinion and I've no burning desire to try, I've already said I understand your position and accept that we disagree. Please do me the courtesy of accepting that you aren't going to change my opinion either.

  52. [52] 
    Moderate wrote:

    And yet, SCOTUS has just declared that Congress does not have the authority to regulate interstate commerce in direct contravention of the Constitution.

    And where did they do that?

    It compounds that blatant abuse of its authority and violation of its oaths by "justifying" its "opinion" by claiming the spending of money is "speech," which is an obvious lie.

    Again, where did they say that? You'll note that Citizens United had nothing to do with contributions, only to political advertising. Advertising is clearly a form of "speech".

    Striking down Constitutional powers enumerated in the Constitution is not an "interpretation," it is an illegal amendment. It is a violation of the law.

    Again, they didn't do that. Congress' enumerated powers are still further limited by the Bill of Rights. The first amendment even begins with the words "Congress shall make no law..."

    SCOTUS will gradually become more and more dictatorial (though claiming commerce is "speech" and corporations are "persons" is pretty dictatorial right now,)

    But buying advertising isspeech. Clearly advertising is a form of expression, the fact it has to be purchased doesn't negate that fact.

    Likewise, corporations have long enjoyed rights as "persons", such as the right against unlawful search and seizure. This isn't new.

    You believe the law is defined by SCOTUS while I believe the law is defined by the Constitution.

    Actually, no, I don't. I believe the law is defined by the Constitution, and that the Constitution itself gives SCOTUS the power to adjudicate over disputes.

    Which is precisely what Citizens United was. A dispute.

    I accept that I can't change your opinion and I've no burning desire to try, I've already said I understand your position and accept that we disagree. Please do me the courtesy of accepting that you aren't going to change my opinion either.

    I'm not trying to change your opinion (I believe we're reached an impasse).

    What I'm doing is pointing out what I perceive to be a combination of either misrepresenting my views or misrepresenting the Citizens United decision.

    Whilst I'm sure these misrepresentations are innocent, they're nonetheless misrepresentations. I think it's clear that you and I aren't going to agree, it was clear that was the case a while ago, and since it appears that my posts to clarify things may be simply reigniting the argument, I shall stop now.

    Thanks again for what I found to be an enjoyable and lively debate. I look forward to "locking horns" with you again, or maybe we might even agree sometime? ;-)

  53. [53] 
    Moderate wrote:

    Chris,

    I've done a bit more reading and it seems that the Cadillac Plans provision now has an exemption for those people who are members of Unions. So the Unions definitely got one of their provisions.

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