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Constitutional Definitions

[ Posted Thursday, April 5th, 2012 – 17:27 PDT ]

The rhetoric surrounding the Supreme Court and the H.H.S. v. Florida case certainly ratcheted up on both sides this week. Expect this partisan fray to get even more intense in the weeks leading up to the decision on the constitutionality of Obamacare, expected in late June. But I'm not going to get into the midst of this fray today (perhaps I will do so tomorrow, though), because I thought it would be more intelligent to review some bedrock definitions of the terms involved.

The first is "constitutional." What is constitutional and what is not? The answer may sound cynical, but it is the absolute truth: what is constitutional is whatever a majority of Supreme Court justices currently say is constitutional. That's it. Nothing more, nothing less. Of course, even this fact may not be constitutional in and of itself, but we'll get to that in a moment.

The United States Constitution was drafted in the late 1780s, after the failure of the Articles of Confederation. But there are two frustrating problems with this foundation of American governmental structure: it is (at times, and in places) maddeningly vague; and it is also quite often maddeningly out of date.

Here's a quick quiz: Is the United States Air Force constitutional?

Well, yes and no. Nowhere in the text of the Constitution is there a single word authorizing an Air Force. Conversely, not a single word in the Constitution prohibits the United States from creating an Air Force. This omission is due to the fact that airplanes weren't invented yet when the Constitution was written.

But I don't believe anyone's ever questioned the Air Force's right to exist constitutionally, because the very question borders on silliness. The Founding Fathers had no opinion one way or another on something that did not exist while they were alive.

I point this argument out to counter the smug "strict constructionist" basic argument. Just because the Founding Fathers didn't address an issue doesn't mean that the United States cannot modernize itself, to put it another way.

The entire argument of whether something in the modern world is "constitutional" does not harken back to the Founding Fathers -- it hearkens instead to a majority of the individuals on the current Supreme Court, and nothing more.

Again, this may sound cynical. But that doesn't make it any less true. Congress passes laws all the time which are blatantly unconstitutional on their face. Airport security searches, for instance, are in clear violation of the Fourth Amendment. As are drunk-driving checkpoints. It is absolutely impossible to read the clear, unequivocal text of the Fourth Amendment and then make the case that either of these examples is legally allowable under the Constitution the Founding Fathers came up with. There isn't even any grey area, here.

But both laws have indeed been upheld by the Supreme Court, so both are -- by definition -- constitutional at the present time. And these are just two relatively innocuous and uncontroversial laws -- there are dozens of others currently "on the books" legally which plainly violate specific clauses or passages in the text of the U.S. Constitution.

The Constitution, to put it another equally-blunt way, is whatever the Supreme Court says it is. Were the concept of "separate but equal" and all the Jim Crow laws constitutional, before Brown v. Board of Education? Yes, they were, because the Supreme Court refused to strike them down before that point. When a Supreme Court did so in Brown, all of these laws immediately became unconstitutional and were null and void. But just because separate drinking fountains based on skin color is unconstitutional today doesn't mean these laws always were. "Constitutionality" is not an absolute -- it changes over time. Remember, slavery was written into the original Constitution the Founders signed, and was completely constitutional as a result.

This is a hard fact not only for lawyers but also for the public at large to swallow: the entire concept of "constitutionality" has a time component. You cannot say whether a law is constitutional or not without also answering the question "in what year?"

Is the Obamacare individual mandate constitutional? Well, at the moment, yes. Will it be in July? Nobody knows.

The Constitution is frustratingly vague on all sorts of issues, and the largest of these is the power relationship between the three supposedly "co-equal" branches of government. Again, by definition, if the branches were truly co-equal, then they could ignore each other at will. Newt Gingrich already pointed this out a few months back, and historically he's got a much more interesting point than the reaction to his comments ever admitted (see what I wrote back then for more context).

Because the lines and limits of power between the three branches are so ill-defined, it has led to a tug-of-war ever since. Presidents routinely attempt to defend and expand the Executive Branch's power. Congress does exactly the same thing, and pushes back on the other two branches in support of more power for the Legislative Branch.

The Judicial Branch, personified by the Supreme Court, is (depending on how you look at it) either the most powerless branch or the most powerful. It is powerless, as Andrew Jackson pointed out during his own fight with the court, to enforce any of its decisions. It has no police force of any kind -- all federal forces fall under the Executive Branch in one way or another, and are funded by the Legislative Branch. The Court has nothing to do with any of that. But the Judicial Branch is also the most powerful branch, because it has reserved for itself the final say on federal law.

Which brings us down the path to a very ironic garden of weeds. The biggest irony in the current debate is how both sides have completely reversed the positions they've been holding for the past few decades. Democrats are now decrying "activist judges" and Republicans are piously citing Marbury v. Madison. Both are hilariously ignoring their previous stance on the issue. But we'll get to the specifics tomorrow, since we're always snarkiest on Fridays (ahem).

Marbury v. Madison is the monumental irony itself. Decided in 1803, it was perhaps the biggest power grab in the history of American government. The key phrase is now even inscribed on the wall of the Supreme Court building in Washington, just in case anyone forgets: "It is emphatically the province and duty of the Judicial Department to say what the law is."

By handing down this decision, the Supreme Court declared itself the "final word" in constitutional debates. But here's the irony: nowhere in the text of the Constitution is this power found. To put it another way, Marbury v. Madison is not "constitutional" in the way that strict constructionists use the term, and never can be. The Founders simply did not give this power to the courts. The Supreme Court nakedly grabbed this power. Ever since (by the way I'm defining the term), it has been constitutional.

Such power grabs are more common that might be thought, and there is nothing unconstitutional about a president (or a Congress) making such an attempt. Franklin Delano Roosevelt got so frustrated with his Supreme Court that he tried such a power grab -- now infamously known as his "court-packing" attempt. His reasoning was simple: if he couldn't get a majority of nine justices to agree with him that the New Deal was constitutional, then he'd just put six more justices on the court, and guarantee himself a majority.

Note well: nothing about this attempt was unconstitutional. The Constitution itself is silent on how many justices the Supreme Court is comprised of. The Court actually started with six justices, and at times has held as many as ten. There is nothing sacred about the number nine. Raising the number on the court from nine to fifteen was not entirely unprecedented, in other words. F.D.R. asked Congress to approve this scheme, he didn't just attempt it on his own. Congress turned him down, but the Court got the message loud and clear: power grabs could go both ways.

The Supreme Court is ruled by two nebulous concepts: tradition, and precedent. Tradition dictates plenty of their internal rules, and nothing more. The entire section on the Judiciary in the Constitution is only a few paragraphs long, so they've had to make up their own rules as time has gone by.

Precedent, however is supposed to be a firmer ground for the Court to operate upon. But this concept is also in our garden of ironic weeds, because any precedent -- at any time, for any reason -- can be overturned by the current Supreme Court. There is absolutely nothing stopping them from doing so. The recent Citizens United case shows this -- it overturned a century's worth of legal precedent in one fell swoop. Legal precedent, and laws passed over time based on that precedent, sometimes seem to be built on the bedrock of long-settled judicial positions -- but that bedrock can turn to sand in an instant, when five justices decide against it.

The most absurd example of this would be if any future Supreme Court threw out Marbury v. Madison, and determined that the Supreme Court did not ever have the power of judicial review of any law's constitutionality in the first place. It is laughable to even imagine this, but there is absolutely nothing preventing any court from doing so -- except for tradition and precedent. And the fact that they'd be declaring themselves powerless, of course, in the national debate.

The court, ever since Marbury v. Madison, has no real check on its own decisions. There are only two routes open to the other branches if they disagree with a court's decision (well, technically there are three, but "ignore the court and do what you were going to do anyway" hasn't really ever been used since Andy Jackson's time, so we'll discount that as a viable option). These two possible recourses are: impeachment or amendment. If Congress thought a Supreme Court had gone too far, and really wanted to attack them in a frontal assault, they could start impeaching the justices they didn't like. The only thing stopping them from doing so would be public opinion and the vote count in the House and Senate. But the second method is a more powerful one -- if the Court tosses out a law then Congress can in effect overrule them by passing the same law as a Constitutional Amendment. The road for doing so is a long one with plenty of high hurdles, but if such an amendment is ultimately ratified, then the Court can never overrule it ever again. The Court's power is to hold the Constitution itself up as a yardstick to measure any other law. Since an amendment is part of the Constitution itself, it can never subsequently be ruled unconstitutional -- the very idea would be preposterous. The only way an amendment can be overthrown is by another amendment (see: Prohibition).

We began this with a definition and we're going to close with a definition. This one's easy, because it is a term that has no meaning legally (unlike "constitutional"). Like the time aspect of "constitutional," it also has a component to it that is not obvious to all.

The term both sides of the political debate love to bandy about at times like these is "judicial activism." The opposite of this term is praise for "judicial restraint" (or even "upholding the Constitution"). What is not obvious to most (and what is never admitted by anyone attempting to use this term politically) is the truth that the term "judicial activism" cannot be used in a neutral way. There is an "I" in the equation, always.

Here's my definition for judicial activism: "A judge or court decided something I didn't like, and don't agree with." Judicial restraint is defined as: "A judge or court decided something that I approve of and agree with." Nothing more, nothing less.

This holds true no matter what political party the person or persons using the terms belongs to -- because even uttering the term is, and always must remain, completely and utterly subjective.

Everyone's got an opinion on what is and what is not constitutional. Everybody thinks judges should rule the way that they think. That is indeed everyone's right (including even the president), but the only thing which determines constitutionality is which way a majority of the Supreme Court rules. We'd all do well to remember this in the next few months.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

37 Comments on “Constitutional Definitions”

  1. [1] 
    Michale wrote:

    All the discussion on the Judicial Branch was very well written. It's downright "fascinating"" if I may borrow the term.... I do mean that sincerely...

    But here's my beef.. And, while it will likely be more appropriate tomorrow (2.5 hours from now.. :D), let me give the gist right now.

    Obama lied.

    He said that the SCOTUS ruling that CrapCare is unconstitutional would be "unprecedented".

    That's utter bullshit.. Pure and simple, completely and unadulterated bullshit...

    But Obama doubled down on his lie.. Obama said that, by ruling CrapCare unconstitutional, the SCOTUS would be "making laws"...

    WTF!??

    How in the HELL can the SCOTUS, by doing what it has been doing since 1803, "make a law" by ruling CrapCare unconstitutional???

    The simple answer is.. They can't..

    Obama lied..

    Once again, these are those "facts" that everyone here claims to love honor and cherish....

    Yet, it gets really REALLY quiet around here when they show their face... Strange how that is, eh?? :D

    "Sssshhhhhhhhhh I'm hunting fffaaaaacccctttsss.. hehehehehehe"
    -Elmer Fudd

    Now, let me stumble into the realm of speculation.. And I do mean "stumble" because my day started about 16 hours ago and I am beat...

    On Friday afternoon, Obama got a call from a snitch at the SCOTUS. Obama was told that the vote has gone 7-2 or 8-1 against CrapCare...

    The Obama administration was in PURE panic mode... But, Obama (who it's beginning more and more to seem like he actually BELIEVES his own press releases) said, "Don't worry.. Super 'O' will save the day!!" and proceeded to attempt to intimidate, threaten and bully they SCOTUS in an attempt to bend it to his will...

    The SCOTUS responded with whacking little Barry Obama on his nekkid lil backside and sent him to his room with the assignment of writing I AM NOT THE ANOINTED ONE I AM NOT THE CHOSEN ONE I AM NOT GOD'S GIFT TO THE WORLD on three pages of paper, single line spacing..

    Now, bring on Snarky Friday!!! :D

    Good night and thanks for all the fish...

    Michale....

  2. [2] 
    dsws wrote:

    what is constitutional is whatever a majority of Supreme Court justices currently say is constitutional

    No, the SCOTUS can be wrong, even about what the Constitution says. They're the end of the line within the legal system, but the legal system only decides cases, thereby creating case law. The significance of the case law depends on their legitimacy in the eyes of the public and of the other branches. Within reason, lots of deference should be given to such case law in interpreting the positive law (regulations, statutes, and Constitution).

    But the final word rests with Congress. It chose not to exercise that power when FDR asked, but there can be no question that it has the power.

    if such an amendment is ultimately ratified, then the Court can never overrule it ever again

    You just contradicted yourself.

    For example, suppose the Court rules Obamacare unconstitutional, two-thirds of the Congress and three-fourths of states go heavily Democratic, and the entire text of the Patient Protection and Affordable Care Act gets ratified as the twenty-eighth article of amendment to the Constitution.

    By your definition of "constitutional", the Court could then declare that Amendment 28 was retroactive to the Year One thousand eight hundred and seven, and that it makes rude noises at the first and fourth Clauses in the Ninth Section of the first Article, and that therefore its passage was unconstitutional -- and it would be.

  3. [3] 
    Elizabeth Miller wrote:

    Michale,

    He said that the SCOTUS ruling that CrapCare is unconstitutional would be "unprecedented".

    That is not what the president said.

    The discussion on this piece and on the next edition of FTP is going to get pretty intense, I hazard to guess.

    And, so, it is extremely important that we are very careful, when we quote what someone has said, to include the full quote, in context.

    What did President Obama actually say, Michale, that you characterize as a lie?

  4. [4] 
    Elizabeth Miller wrote:

    Michale,

    Once again, these are those "facts" that everyone here claims to love honor and cherish....

    You are correct to put quotation marks around facts because you are misquoting Obama and misrepresenting what he said.

  5. [5] 
    Chris Weigant wrote:

    Michale [1] -

    "Tomorrow, tomorrow,
    I'll claw ya tomorrow,
    It's only a day away..."
    -Bill The Cat, Bloom County

    Heh. Look that one up if you don't believe my memory of the 1980s...

    I do have to ask, though, on your last line. Fan of Douglas Adams?

    LizM -

    Oh, you betcha, I'll be providing the full context. It's all about the context, on this one.

    -CW

  6. [6] 
    Chris Weigant wrote:

    dsws -

    OK, I'm confused. It seems you're arguing for an oxymoron. If SCOTUS says a law is constitutional, then by my definition of constitutional, it is. You're using the more absolute definition of the term (which, I realize, the entire rest of the political universe uses, but that didn't stop me, did it?), and saying that when SCOTUS is wrong and wrongly decides a case, that the law is (in the absolute sense) still unconstitutional, even though the court just affirmed that is was constitutional.

    Bringing to mind Schroedinger's Cat. It would be a Schroedinger's Law -- alive and dead at the same time, wouldn't it? How can a law be both constitutional and unconstitutional at one precise moment? Maybe it's a problem of "intrinsic" versus "extrinsic" or something.

    My definition doesn't allow for such conundrums (conundra?): either a law is deemed constitutional or it isn't. While the SCOTUS may indeed be wrong, a law doesn't become constitutional until SCOTUS either says so or ignores it (refuses to take a case, which is an affirmation of a different sense -- passive, not active).

    So a law can be wrongly constitutional or wrongly unconstitutional, but it can never be both constitutional and unconstitutional at the same time.

    OK, now I just made my own head spin, so I'll move along to your second point.

    I don't think your test case is valid. The Supreme Court has never in its entire lifetime tried to overturn an amendment. It would be an enormous power grab if they tried to do so, and the oft-bandied term "constitutional crisis" would indeed apply.

    While most everyone is OK with Marbury being settled tradition, I seriously doubt whether the public would stand for SCOTUS to deem an amendment unconstitutional in any way shape or form.

    It would be ridiculous for them to try -- an amendment is by definition (once properly ratified) PART of the Constitution itself. The Constitution is the Constitution. It cannot -- even partly -- be judged by itself. The very idea is ludicrous.

    Unless I'm misunderstanding your example. Could be, or it could be just a semantics problem.

    Now, the Court can indeed allow Congress to make an end-run around an amendment. Look at the last one passed, and the battle over whether a COLA was a "raise" or not. SCOTUS got this one massively wrong, and allowed Congress to go right on raising their pay in the middle of their terms. So the COLA law is constitutional, even though it plainly is in open contradiction with the amendment. The force of the amendment is thus nullified, at least until some future court wakes up and reverses this idiotic decision.

    But until that happens, COLAs are constitutional. Even though, by your logic, they are also not constitutional at the same time. But even in that case, the court didn't attempt to chuck out the amendment, they just gutted it of all legal standing -- a very different thing (and one that is easier to reverse).

    -CW

  7. [7] 
    Chris Weigant wrote:

    dsws -

    Here's a question for you to ponder: before the 13th and 14th amendments, was slavery "constitutional," as you define the term?

    -CW

  8. [8] 
    Michale wrote:

    Liz,

    The discussion on this piece and on the next edition of FTP is going to get pretty intense, I hazard to guess.

    What did President Obama actually say, Michale, that you characterize as a lie?

    Ya wanna get into it now?? Or wait til CW's FTP adds fuel to the fire?? :D

    CW,

    "Tomorrow, tomorrow,
    I'll claw ya tomorrow,

    Yea, it's just a pain that I am expecting a bumper weekend this weekend. Might not have time to fully address the FTPs til Monday.

    By then, no one wants to play anymore. :D

    I do have to ask, though, on your last line. Fan of Douglas Adams?

    Not really. You know me.. I just throw these things out when the situation/issue warrants :D

  9. [9] 
    Michale wrote:

    "Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

    The SCOTUS ruling a law is unconstitutional is NOT "unprecedented".

    Lie number 1

    The SCOTUS ruling a law unconstitutional is NOT "extraodinary".

    Lie number 2

    CrapCare was NOT passed by a "strong majority".

    Lie number 3

    "that an unelected group of people would somehow overturn a duly constituted and passed law.

    What does "unelected" have to do with anything??

    The whole statement is bogus because that is EXACTLY what the SCOTUS does..

    Obama is implying that it can't legally be done.

    Lie number 4

    "“Well, first of all, let me be very specific. We have not seen a court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.

    There have been dozens of cases where the SCOTUS has struck down issues related to the Commerce Claus.

    Lie number 5.

    Com'on people... Obama stepped in kaa-kaa over this.

    He is wrong. Admit it..

    Show me you can condemn Obama for something OTHER than he's not hard enough on the GOP...

    For the record, it seems that Fact Check Dot Org agrees with me...

    Obama Eats His Words
    http://factcheck.org/2012/04/obama-eats-his-words/

    I'm just sayin' :D

  10. [10] 
    Michale wrote:

    We can argue "context" and "misstatements" and what the definition of "is" is til the cows come home..

    But, simply put.

    This is one of those times when the Republicans are right and Obama is wrong.

    I bet (10K Quatloos) more than three people here (ya'all know who you are) won't admit that, though.. :D

    Michale.....

  11. [11] 
    akadjian wrote:

    Chris-

    I recommended this article to several people. Why?

    Because one of the things that I would like to see more of is what I call the long game. Looking at the bigger picture and looking past short term wins.

    What we should be fighting for here is for a definition of the Constitution as a "living document". Which I believe is exactly what you're saying.

    When anyone agrees with this viewpoint, I am all for it.

    What we should be fighting against is the idea that somehow the founding fathers wrote a document several hundred years ago which we should strictly follow to this day. And that somehow certain people are endowed with the ability to know what the founding fathers wanted. This is a very religious view of the Constitution - with it being treated more like the bible which only certain priests can interpret.

    I think the bigger win for progressives would be to convince people of this idea. We should be lauding the Supreme Court justices for reversing their stance on strict constructivism, even if it means we lose on health care.

  12. [12] 
    akadjian wrote:

    Whups. My cat hit the return button. Apparently, she thought I'd said enough :).

    Anyways, just thought this was a great article because it brings us back to what really should matter - and that is ideas.

    If conservatives want to agree with us that the Constitution is a "living document," I think we should praise them for it and use the opportunity to help educate people about the importance of the Constitution as a set of guidelines, not as some strict Bible.

    -David

  13. [13] 
    Michale wrote:

    If conservatives want to agree with us that the Constitution is a "living document," I think we should praise them for it and use the opportunity to help educate people about the importance of the Constitution as a set of guidelines, not as some strict Bible.

    If you include Independents and NPAs in that, count me in... :D

    Michale....

  14. [14] 
    Michale wrote:

    If conservatives want to agree with us that the Constitution is a "living document," I think we should praise them for it and use the opportunity to help educate people about the importance of the Constitution as a set of guidelines, not as some strict Bible.

    I think the only time you will run into a problem on this is when the Left tries to re-interpret what the Founding Fathers specifically said.

    The 2nd Amendment comes to mind...

    Michale...

  15. [15] 
    nypoet22 wrote:

    CW [6-7],

    it does seem that there are two conflicting definitions of constitutionality. one is an ideal that represents "absolute" constitutionality and the other amounts to "pro-tempore" constitutionality.

    the latter definition is exactly as you wrote, whatever the supreme court happens to say is constitutional at the time. this amounts to an operational definition, the way it is treated at the time it is interpreted.

    the former definition is a bit more difficult to establish, since the constitution has always been in constant tension with itself. at the very beginning, the clauses explicitly permitting slavery conflicted with the fifth and eighth amendments. to address this, i go to the preamble. the constitution exists with the expressed purpose of perfecting the union. since the constitution "is" the union, it is essentially the constitution perfecting itself.

    in this sense, there would be a sort of absolute constitutionality. it wouldn't exist in the here and now, but it represents "what the constitution would mean in its ideal form." by this definition, slavery was never really constitutional in an absolute sense, it was allowed under a less perfect (and therefore less valid) version of the constitution.

    ~joshua

  16. [16] 
    Elizabeth Miller wrote:

    Michale,

    Once again, these are those "facts" that everyone here claims to love honor and cherish....

    Yet, it gets really REALLY quiet around here when they show their face... Strange how that is, eh?? :D

    "Sssshhhhhhhhhh I'm hunting fffaaaaacccctttsss.. hehehehehehe"
    -Elmer Fudd

    Before I get started - and I'm waiting for FTP, by the way, since you are not the only one here who who has long days and works under time constraints, believe it or not - this is an unnecessary show of disrespect for your fellow contributors here, smiley face notwithstanding.

  17. [17] 
    Michale wrote:

    I read someplace (maybe it was even here on CW.COM) that any laws passed by Congress are assumed to be constitutional until such time as the SCOTUS says otherwise.

    If this is true that, as much as it pains me to say, CrapCare IS constitutional.. At least for a couple more months...

    But, getting back to the my original point, if this is true, then a new way of putting forth the discussion will have to be invented.

    Because, you can say, "CrapCare is unconstitutional" until such time as the SCOTUS *says* it is...

    Michale.....

  18. [18] 
    Michale wrote:

    constraints, believe it or not - this is an unnecessary show of disrespect for your fellow contributors here, smiley face notwithstanding.

    While I am constrained to point out that respect begets respect, I did not mean to be disrespectful in the least...

    I was attempting to be funny.. My sincerest apologies that it fell flat..

    Michale

  19. [19] 
    dsws wrote:

    before the 13th and 14th amendments, was slavery "constitutional," as you define the term?

    Of course. It's not just not forbidden by the pre-13th-amendment Constitution, but unambiguously condoned.

    I seriously doubt whether the public would stand for SCOTUS to deem an amendment unconstitutional in any way shape or form.

    So the public, not the Court, has the final say, right?

    It would be ridiculous for them to try -- an amendment is by definition (once properly ratified) PART of the Constitution itself. The Constitution is the Constitution. It cannot -- even partly -- be judged by itself. The very idea is ludicrous.

    The Constitution says not only how an amendment is to be proposed and ratified, but also (in two cases) what an amendment may say. No amendment can limit the slave trade or impose a capitation tax before 1808. By your definition, if the Court says that's what an amendment does, then that's what the amendment does. And if that's what the amendment does, then its passage was unconstitutional.

    Here's a question back at ya: if the Court says that all that confusing stuff in the first couple articles, that sounds as though it's about elections and so forth, means (according to five justices) that Clarence Thomas is dictator-for-life and no elections shall be held, then would it it really be unconstitutional to hold an election? That's what your definition commits you to.

  20. [20] 
    Elizabeth Miller wrote:

    Michale,

    I was attempting to be funny.. My sincerest apologies that it fell flat..

    I've decided that I'm not going to let you hide your disrespect behind smilely faces, anymore.

    Which is not to say that I've suddenly lost my sense of humour or that I don't find much of what you say to be laugh-out-loud funny.

    :)

  21. [21] 
    dsws wrote:

    I just noticed you contradicted yourself again:

    Remember, slavery was written into the original Constitution the Founders signed, and was completely constitutional as a result.

    By your definition, the constitutionality of slavery was absolutely not "a result" of anything written into the original Constitution. What was written in the Constitution has nothing whatsoever to do with what was or wasn't constitutional, under your definition. Slavery was constitutional because the Court upheld it, full stop.

    --

    Continuing with my previous comment -- we need not resort to the Article V dodge in order for "the Constitution means exactly what the Court says it does" to be problematic. For example, before the first Supreme Court was appointed, people went about holding elections, taking office, enacting the rules of each chamber of Congress, and passing laws. But at the time, the Court had not said that the Constitution said anything, so it didn't. The parchment, despite appearances to the contrary, was completely blank, and everyone was just making stuff up.

    Of course, you didn't use the full-blown form. The parchment had ink on it. It's just that absolutely nothing was either constitutional or unconstitutional, because the conditions that define constitutionality did not exist until a Court was appointed.

    There's an even easier way of having the Court be impervious to constitutional amendments: they can simply declare that an amendment means absolutely nothing, and by definition they're right. It could cite the decision explicitly, and say that it's reversed: they could say that refers only to butterflies and how pretty they are, and proceed to affirm their previous decision. By definition, if that happened, "the decision is hereby reversed, and the Court is enjoined from affirming it" would mean simply that butterflies are pretty.

  22. [22] 
    nypoet22 wrote:

    "the decision is hereby reversed, and the Court is enjoined from affirming it" would mean simply that butterflies are pretty.

    i think that blatant a violation of common sense would qualify as an impeachable offense. remember, impeachment is less legal than political. a congress with enough votes to pass a constitutional amendment on an issue would also have enough votes to impeach any justices who might interpret their amendment into meaninglessness.

  23. [23] 
    Michale wrote:

    I've decided that I'm not going to let you hide your disrespect behind smilely faces, anymore.

    Fair enough.. Hold my feet to the fire!! :D

    Just as long as we understand each other that, just because I smiley, doesn't ALWAYS mean I am being disrespectful..

    Which is not to say that I've suddenly lost my sense of humour or that I don't find much of what you say to be laugh-out-loud funny.

    Good.. I would hate to think I lost one of my talents..

    Michale

  24. [24] 
    Elizabeth Miller wrote:

    Michale,

    Just as long as we understand each other that, just because I smiley, doesn't ALWAYS mean I am being disrespectful..

    Absolutely, positively, unequivocally!

  25. [25] 
    nypoet22 wrote:

    just to follow up on my earlier comment [15]:

    i think the idea of "original intent" is not necessarily a bad one, that the founders had an idea about how they wanted things to be, and that is how we should interpret. however, as with most issues it seems to me, the intellectual conservatives are in the right ballpark when diagnosing the problems, but completely ass-backward when prescribing a solution. the "real" original intent is found in the preamble, with a constitution intended not as it was in 1789 but to be realized at some future date where its ideals of a more perfect union might be fully realized. the intent is in the goals put forth at the outset, not in the nuts and bolts of the document.

  26. [26] 
    Elizabeth Miller wrote:

    Michale,

    He said that the SCOTUS ruling that CrapCare is unconstitutional would be "unprecedented".

    Has the SCOTUS ever ruled on "CrapCare" before?

    Well, then, I rest my case ...

  27. [27] 
    Michale wrote:

    CrapCare is not the subject that Obama's statement indicated.

    The SCOTUS ruling it unconstitutional is the subject.

    Don't listen to me..

    Politi-Fact, Fact Check etc etc all ruled that Obama lied or misstated the facts...

    Michale

  28. [28] 
    Elizabeth Miller wrote:

    CrapCare is not the subject that Obama's statement indicated.

    What?

  29. [29] 
    dsws wrote:

    i think that blatant a violation of common sense would qualify as an impeachable offense

    In the opinion of many Americans, various rulings on the first, second, fourth, and tenth amendments are blatant violations of common sense. And as you say, what's impeachable is political -- that is, it has little if anything to do with sense, common or otherwise.

    Has the SCOTUS ever ruled on "CrapCare" before?

    Well, then, I rest my case ...

    A precedent need not refer to exactly the same statute.

  30. [30] 
    Michale wrote:

    Meaning, the subject that "unprecedented" referred to wasn't CrapCare, but rather that the SCOTUS would rule it unconstitutional...

    For a Constitutional Lecturer from Harvard to make such a claim is ludicrous..

    And, apparently, the Judiciary agreed with me..

    Hence, the slap down from the 5th Circuit..

    Michale.....

  31. [31] 
    Elizabeth Miller wrote:

    dsws,

    A precedent need not refer to exactly the same statute.

    Oh, yeah?

    Well, then ... answer me this.

    When was the last time the SCOTUS ruled against the executive and found a federal law unconstitutional that had such economic significance for the country as the Patient Protection and Affordable Care Act?

  32. [32] 
    Michale wrote:

    had such economic significance for the country as the Patient Protection and Affordable Care Act?

    If it has such economic significance, then it would behoove the Administration to "get it right", no??

    From all indications, the Administration failed.. EPIC fail....

    Regardless of what you or I or even (ESPECIALLY) Obama thinks, the SCOTUS has the final say....

    Michale.....

    Michale...

  33. [33] 
    Michale wrote:

    Michale.....

    Michale...


    Kaffey: "Is this your signature?"
    Dawson: "Yes Sir!"
    Kaffey: "You don't have to call me sir. Is this your signature?"
    Downey: "Sir, yes sir!"
    Kaffey: "You definitely don't have to do twice in one sentence."

    :D

  34. [34] 
    Michale wrote:

    I mean, honestly.

    Do ya'all REALLY want to give a GOP government the authority to force ya'all to buy guns??

    Or bibles??

    Or Cammo Swimsuits???

    Just THINK of the possibilities with a government that can FORCE an American citizen, under penalty of higher taxes to buy any damn thing the government wants you to buy..

    Are ya'll REALLY so desperate for a Democrat "win" that you can't see the potential harm this precedent can do???

    Michale.....

  35. [35] 
    dsws wrote:

    When was the last time the SCOTUS ruled against the executive and found a federal law unconstitutional that had such economic significance for the country as the Patient Protection and Affordable Care Act?

    I believe that would be 1936.

  36. [36] 
    dsws wrote:

    And of course, the American people had the final say, reversing the Court's decision just as they will if this one is wrongly decided.

  37. [37] 
    Michale wrote:

    And of course, the American people had the final say, reversing the Court's decision

    The American people reversed a SCOTUS decision??

    Do tell...

    Michale.....

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