Interpretation of "original intent" is absolutely guaranteed to culminate in the interpreter's own views. That's the sole purpose of the doctrine. By contrast, it's easy to imagine that evolution is going toward something beyond merely human.

Assumes facts not in evidence..

Michale.....

We already force everyone to buy weapons, we have one huge military! And if this country ever decides to treat obesity the way we treat smoking being forced on to a diet may be the least of your problems.

Our government simply cannot be trusted, no government can. The Founding Fathers knew this. Our government is based on it. Only constant vigilance, by everyone, and everyone safeguarding the Constitution might keep things from getting totally out of hand. Ultimately, its our freedom and its up to us to protect it.

The SCOTUS does have the power to decide what it will take to be the facts of cases, for legal purposes. In practice, however, facts are found by lower courts. If the SCOTUS holds that a case turns on a question of fact, I think the case is normally remanded to a lower court.

Nonetheless, even if the SCOTUS breaks with that practice and holds that a dog has five legs, that does not change the fact that a dog has only four legs.

So, that is exactly what the SCOTUS did.

No, the Court made an interpretation. The facts include the text of the law, the fact that everyone uses medical services whether they pay for them or not, the cost of providing those services on an emergency basis as compared to that of providing them on a non-emergency basis, and so on. The decision to consider the mandate's penalty payment a tax is an interpretation.

--

I now note that silence does not equal assent. If I get tired of repeating my interpretation of the situation every time you repeat yours, it does not mean that your argument-by-repetition has accomplished anything.

David won the bet...

But it's fun as hell analyzing the ins and outs of this ruling... :D

Michale.....

No. The SCOTUS decides cases, not facts.

No. The SCOTUS decides the FACTS of cases..

And the SCOTUS ruled that ObamaCare CAN be affirmed AS A TAX...

So, that is exactly what the SCOTUS did.

The SCOTUS affirmed ObamaCare AS a tax...

It's quite remarkable, when you think about it..

The more I read about this, the more I think CB is on to something...

The SCOTUS ruled the Mandate unconstitutional under the Commerce Clause. They could have left it at that.. But they chose to use the argument that Obama COULDN'T and affirmed ObamaCare as a tax....

One has to wonder if Roberts duped the liberal Justices... I can't believe they would be willing to hand Obama such a Pyrrhic victory..

But, from Robert's perspective, it HAD to be a win/win... His court is affirmed as being above politics and he hammers a stake right thru the heart of the Obama re-election campaign..

Michale.....

I don't know. Perhaps he was concerned about how the precedent would be used by future Courts if he struck it down. After all, despite their rhetorical flourishes, the right wants a whole lot more government intrusion than the left does.

[70] Michale
If the SCOTUS says it's a tax, then it's a tax.

No. The SCOTUS decides cases, not facts. The effect is to set precedents, not to alter the underlying reality. If they say it's a tax, then the relevant doctrine for cases heard before lower courts (the SCOTUS is free to reverse itself) is that it's a tax -- or more precisely, an exercise of the taxing power.

Whether it's actually a tax is a question of economic theory, and if my take on economic theory is correct, also a question of legislative intent. A tax is when the government takes money from people for the sake of revenue; a penalty is when the government takes money from people for the sake of eliciting compliance with its commands. A successful tax is collected; a successful penalty is not.

There's no question that it's an exercise of the taxing power. It's administered and collected by the IRS (or will be after it begins to be phased in). On the other hand, it's called a penalty. I quote from the law:

``SEC. 5000A. <> REQUIREMENT TO MAINTAIN MINIMUM
ESSENTIAL COVERAGE.

``(a) Requirement To Maintain Minimum Essential Coverage.--An
applicable individual shall for each month beginning after 2013 ensure
that the individual, and any dependent of the individual who is an
applicable individual, is covered under minimum essential coverage for
such month.
``(b) Shared Responsibility Payment.--
``(1) In general.-- <> If an applicable
individual fails to meet the requirement of subsection (a) for 1
or more months during any calendar year beginning after 2013,
then, except as provided in subsection (d), there is hereby
imposed a penalty with respect to the individual in the amount
determined under subsection (c).

As a matter of case law, it's an exercise of the taxing power. As a matter of fact, with legislative intent as a key component, it's a penalty.

--

The Court's argument is stupid. It says that people who habitually ride the bus without paying may not be compelled to buy bus tickets unless they're actually on the bus at the instant the penalty is assessed.

As tickled as I am now that you guys have maneuvered me into defending the president, I still haven't seen evidence that proves anything other than the usual political doublespeak. You can spin it as a lie if you want, but you have yet to provide anything resembling a smoking gun, or for that matter even a direct quote.

Just think about all the millions of Lefties who screamed that "Bush Lied"....

Then you might get the idea....

I think that Obama knew damn good and well that what he was proposing was a tax....

Of course, being the consummate Nixonian politician that he is, he couldn't come out and say that..

Especially since he had a READ MY LIPS moment...

Obama will pay for this. The Right will ensure it...

Just as the Left ensured that Bush paid for HIS "lies"....

Michale.....

That's odd, I thought Obama spoke through his teleprompter - it's so hard to get all this news straight. (/snark)

As tickled as I am now that you guys have maneuvered me into defending the president, I still haven't seen evidence that proves anything other than the usual political doublespeak. You can spin it as a lie if you want, but you have yet to provide anything resembling a smoking gun, or for that matter even a direct quote.

Every argument you can make for justifying forcing people to buy health insurance, I can make to justify forcing people to buy firearms..

Do we, as a country, REALLY want to travel down that road???

I am a fat guy... My obesity might cost taxpayers down the road.. Does that justify forcing me to a diet with food I don't want and exercise I don't want???

Where does it end???

Apparently, no where.... The government can now force Americans to purchase anything, to do anything, all in the name of the public good...

I thought you liberals were all about freedome and individuality???

Seems like all liberals care about is winning...

Which makes them indistinguishable from Conservatives...

Michale.....

Aside from the amusement of a former LEO complaining about a fine being a "tax," if your uber-riche choose to pay a tax rather than purchase healthcare "then that is there right." I fail to see why President Obama should be penalized for it.

And unless these people are building and financing their own hospitals and 911 systems, medical research, and teaching institutions we are subsidizing there healthcare even if they pay privately for specific healthcare costs so we have every right to demand they contribute to defray those costs.

Roberts Labels Obama a Tax Raiser
http://decoded.nationaljournal.com/2012/06/roberts-labels-obama-a-tax-rai.php
Got good news and bad news for you, Mr. President. The good news is that Chief Justice John Roberts just saved your legacy and, perhaps, your presidency by writing for the Supreme Court majority to rule health care reform constitutional.

"I'm sure they'll nail us on taxes and I'm sure it will work," said a senior White House official speaking on condition of anonymity. "But, given the alternative, that's a bitter pill I'm ready to swallow."

His SG argued to the Court that it wasn't a tax, and then the next day argued that it was a tax, remember? And HE speaks through his SG, so don't even try spinning that one.

Actually, I agree with you. In fact I'm against any and all privatization efforts because there is nothing a private company can do that the government cannot, and any profit at all by definition means the taxpayers paid too much. But the point I was trying to make is that providing healthcare, like security, is an intangible and subjective but no less a valid government function which will, as every other government function does, necessitate the purchase of certain commodities in order to provide the public with a service.

And if this were a sane world unhampered by politics we'd have a single-payer system in which there'd be no doubt that we all pay a tax for government provided healthcare.

What SCOTUS actually said was that the penalty was a tax not the mandate itself.

When I was a lad racist meant acting on a race based prejudice instead of factual information. Since the Civil Rights Act the Right has been insisting that racism means any action in which race is a basis, technically true.

This semantic tactic attempts to paint any "racist" act, such as complaining about being discriminated against, as the same as, and therefore just as bad, as anything the KKK might have done. You have clearly decided to participate in their efforts to empower racial bigots everywhere.

In answer to your question, however, surprisingly, it would depend on whether or not the white AG actually had been harassed by the Black Caucus—A minor and insignificant detail to you and I-Am-Not-A-Racist Tea Party members, but a matter of some import to me.

As for your claims about the acceptability of "White Power" vs "Black Power" I'll tell you the same thing I once told Chris, that one of the most racist things I've ever heard in my life was during the Civil Rights Movement when a Black woman told me that Black people couldn't be racists because they were Black. Personally, I find your comment to be in that same vein.

do you have any recent quotes from obama to substantiate this statement? i.e. when specifically did HE say that the mandate was a tax? if he didn't, then it's a difference of opinion (which of course the supreme court wins), but not a lie. if he actually DID make the argument that it IS a tax, then he definitely needs to explain why his opinion today is different from his opinion three years ago. would anyone care to step in with some objective evidence?

~joshua

Uh, he SOLD this to the American people (not that the majority of Americans ever bought it) with the assurance that the mandate wasn't a tax. He swore up and down, ad nauseam, that it wasn't a tax. And not until it was before the Court did the administration argue that it was a tax. So, yeah, he did indeed lie to the American people.

If the SCOTUS calls a tail a leg, how many legs does a dog have?

That's comparing apples and Eskimos...

A dog's tail is a dog's tail. It's not an abstract or subjective or judgement. It's an objective fact...

ObamaCare as a tax is a subjective judgement call. And, since we all agree that the judgement of the SCOTUS is the final word....

If the SCOTUS says it's a tax, then it's a tax...

You can't pick and choose the parts of the ruling you want and ignore the rest.

It's against the rules... :D

Michale.....

Simply because the supreme court disagrees with him, that doesn't necessarily make his statement a lie. Assuming they are right and he is wrong, it is a mistake. For it to constitute a lie, he would have had to BELIEVE that it was a tax when he said it wasn't, a proposition that would be somewhat more difficult to prove.

Anyhow, since nobody responded when i first asked, i'll ask again, why does everyone think Roberts decided to affirm the law? I've already heard LD's view, that he did it "to maintain the Court's reputation and appearance that its at least arguably objective and nonpartisan." nobody else here has a different opinion?

~joshua

I'm talking about Obama having lied to the American people, saying it wasn't a tax. "Obama: Mandate is Not a Tax." Get it? Evidently not.

The only people who will have to pay a penalty in the form of a healthcare tax are the people who can afford healthcare insurance but who choose not to buy it.

Irregardless of that, it is STILL a tax.. For whatever reason, people who earn less than $200K may not want to get health care insurance.

THAT IS THEIR RIGHT...

So, if they exercise that right, they will be taxed and taxed heavily..

Which is something that Obama promised would NEVER happen..

This is EXACTLY same as H W Bush's "READ MY LIPS" moment. And that moment doomed Bush's re-election chances..

Here's hoping it has the same effect on Obama's re-election..

Michale....

The only people who will have to pay a penalty in the form of a healthcare tax are the people who can afford healthcare insurance but who choose not to buy it.

You aren't one of those free-loaders, are you?

OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase...
http://abcnews.go.com/blogs/politics/2009/09/obama-mandate-is-not-a-tax/

So, politically, how does O get around having lied about it being a tax, and that everyone's taxes have, indeed, been raised — despite his insistance that they weren't gonna raise taxes on the middle class?

"You will not see your taxes increase a single dime. I repeat: Not one single dime."

Is this a "Read my lips; no new taxes" moment or what?

Since the Constitution defines requirements for a valid amendment (two-thirds vote, ect.) SCOTUS as constitutional gatekeeper can decide an amendment hasn't met those requirements, and invalidate it.

Actually, the position in the article at the top of the page is more radical than that. The claim is as follows:

what is constitutional is whatever a majority of Supreme Court justices currently say is constitutional. That's it. Nothing more, nothing less.

That means that the Court doesn't need any basis whatsoever for its decision. It can simply say, 'it's unconstitutional to pass this amendment', and then it is unconstitutional to pass that amendment, end of story.

Not at all, LewDan.

But the government provides police protection and ... ahem ... the world's largest military force to protect everyone in our country equally.

Are you advocating for no police and no military?

I suppose another way of doing this would be to simply give everyone guns. I wouldn't advocate for this though. I'd rather trust people who are trained for that type of work.

My solution to the health care issue would have been much more like this. It is a government run health care program. It is single payer. Everyone pays in and there is no conflicting profit motive from health care companies acting as the middle man. I would much prefer this to the Obama public/private solution.

What we do now is give our money to some private company, they take a cut off the top, and then they give it to a hospital. Why not cut out the middle man and run it as a non-profit?

-David

If the Constitution says whatever the SCOTUS says it says, period, then "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate" can perfectly well mean "and that no amendment shall incite the ire of Grover Norquist". All it takes is five Justices to say so.

Oh, I disagree. The Constitution doesn't say anything like that.

The Constitution certainly does say what it takes for an amendment to be valid. It has to have been proposed by Congress or a convention and then ratified by enough states, and it has to refrain from either limiting the slave trade prior to 1808 or depriving any state of its equal representation in the Senate without its consent.

It's going to be an interesting Saturday, that I can tell you...

Aha! Here you are, Michale. I was looking for you on the latest post.

I have to say after the last couple months, I was a bit surprised.

I will do my best to refrain from too much celebration. Well played and looking forward to the pics of you in an Obama shirt!

-David

p.s. The good part is that we here can always joke around about this kind of stuff and usually come to some sort of agreement where both sides compromise (or at least we're not calling each other names :) ). It would be nice if our legislators could do the same. End sermon.

Will that work???

That'll do just fine. :)

Well, at least there is SOME good news today... :^/

Michale...

Now THAT'S what I'm talking about!!!!! :D

Michale....

Tune into the Friday http://FTP.. I'll be posting the video link so that all Weigantians can witness me in my OBAMA shirt....

It's going to be an interesting Saturday, that I can tell you...

Michale.....

Michale.....

DOH!!!!

My Bust

I completely forget that part of the bet..

My sincerest apologies..

It will forever pass my lips as ObamaCare..

Will that work???

Michale....

Crapcare

And, I though you were a man of your word.

that's always been my position on this legislation, that it's just a hair better than nothing at all. it does prevent some pretty nasty health insurance practices, and if it doesn't exactly lower costs, at least it will not drive costs up any higher than they otherwise would have gone anyway.

considering the administration's other accomplishments, it could have been worse. any thoughts on roberts' reasons for affirming?

~joshua

Since the Constitution defines requirements for a valid amendment (two-thirds vote, ect.) SCOTUS as constitutional gatekeeper can decide an amendment hasn't met those requirements, and invalidate it.

How so???

If all 50 States vote to ratify a new Amendment, how exactly could the SCOTUS stand in the way??

Michale....

CrapCare is a tax...

Hopefully, this will be Obama's READ MY LIPS moment..

With the same result...

Michale.....

Obama might have won the battle, but it's entirely possible that he will lose the war...

Michale....

Security is every bit as nebulous and subjective as happiness. Are you claiming the military should be disbanded as government has no business trying to provide security to people?

I seem to remember something in the Preamble of the US Constitution that says something about "Providing For The Common Defense"...

Yea, I think I read that...

Michale.....

Applying your health care analogy to security do you think the government should supply everyone with weapons so they can attempt to attain personal security?

Chris,

Since the Constitution defines requirements for a valid amendment (two-thirds vote, ect.) SCOTUS as constitutional gatekeeper can decide an amendment hasn't met those requirements, and invalidate it.

Michale,

Security is every bit as nebulous and subjective as happiness. Are you claiming the military should be disbanded as government has no business trying to provide security to people?

The court rules how the court rules...

I think I'm going to throw up...

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

Maybe your right. Maybe CrapCare isn't so bad..

However, the way Obama and the Democrats went about it doomed it from the start..

Michale....

Exactly my point. This is the system we have now. The system which those without health care use as health care.

It's inefficient, costly, and doesn't work very well.

What's the conservative solution to this?

It was exactly what Obama proposed. Until Obama proposed it. Then conservatives had to change their stance because ... God forbid ... you can't compromise with liberals.

Even if liberals work to give you your solution.

This is the idiocy that is government these days.

A subtle, yet significant difference.

Oddly enough, Michale. I largely agree with you here. It's exactly what I was saying when I said that in some ways it is a commodity.

The role of the government should be to make sure a system exists where everyone can acquire health insurance. Just as, in the case of happiness, the role of the government should be to make sure the opportunity exists for everyone to be able to pursue happiness.

One of the problems w/ our health care system is that health care is simply unattainable for many people in our country. And there's reasons for this.

One of the reasons is that people try to cheat the system. That is, they try to purchase health care only when they need it. In this scenario, insurance companies lose.

The only way insurance works is if everyone participates. Even the healthy.

How do Republicans plan to fix this?

Another issue is being denied for pre-existing conditions. How can you get health insurance if no one will insure you because you have a pre-existing condition?

How do Republicans plan to fix this?

The answer is, they don't. Their only plan is to block any effort at fixing the many, many problems associated with attaining health care in our country.

How do Republicans plan to create a system where health care is available to everyone?

They don't. Their answer is, if you're poor or out of work or have a pre-existing condition or the health care company can't find a way to make money off of you, tough shit.

Once people start to realize this, Obamacare doesn't look so bad.

-David

You know I'M gonna be.

Testing... NAR-NARNEE-NAR-NARRRRRR... testing...

It'll be interesting to see if the Obama Administration survives the week...

Michale.....

Did you know, Michale, that health care already is a right in our country?

Reagan made it so when he signed a law into effect stating that no emergency room could turn down patients.

You are referring to medical services, not health care...

Medical services is breaking your arm and having to go to the ER to get it set. Medical services is having your appendix burst while you are setting up wifi services and being rushed in to emergency surgery...

Health care is going to your family doctor for a measles booster. Health care is seeing a doctor when that rash develops on your.... ahem... foot and seeking assurances it's not going to fall off...

Health care can be purchased. Happiness can't be purchased directly and therefore can't be a commodity. That is, you can't go somewhere and ask for several bars of happiness.

You've obviously never been a kid in a candy store.. :D

But my point is, you have the right to find happiness.. But the government is not obligated to give it to you..

If you want happiness, or health care, or a new car, or a hot new girlfriend, it's YOUR responsibility to acquire those things.

The government is not obligated to provide them...

That's my opinion anyways and I am backed up by the US Constitution.

The other flaw is that I believe I recall a certain document which helped enshrine the rights of "life, liberty, and the pursuit of happiness" as actual rights of individuals in our country.

Yes, the PURSUIT of happiness.. What that means to me is that you have the right to acquire happiness... If you had the right to have government make you happy, then it would have said "life, liberty and happiness"...

But it doesn't say that. It says "PURSUIT of happiness"... That means you have the right to try for happiness..

Doesn't mean you have the right to happiness.

A subtle, yet significant difference..

CW,

You just made a brilliant argument why Citizens United is horse puckey, as it overturned a century of election law while it took a big dump on stare decisis (hope I spelled that right). You do realize that, don't you?

Heh.

I have never really been "FOR" Citizens United... Personally, anything that injects MORE money into campaigns that already see obscene amounts of money simply CANNOT be good..

No, my issue right from the beginning has never been about the wisdom of CU, but rather the hypocrisy of the Left for condemning CU and then embracing it when they found it could possibly work for them....

You recall, right at the outset, that I said all the bellyaching about CU from the Left will stop, once the Left realizes that they could use it to..

That was a prophetic statement that was proven factual just a month or two later...

Yes, I did see that when you earlier posted it. Man, that tent is HILARIOUS! The perfect thing to visit a camping Grateful Dead show (if they still existed... sigh...).

Check the photo out, folks, it's worth it.

Yea, it was so awesome, I felt it worth another post... :D

The really awesome thing is it's a 1:1 scale for the real Vdub wagon... :D

Gonna be a fun fun day today... :D

Anyone gonna be around???

Michale.....

I think we're closer than we originally may have thought (on my part, at least).

[19] -

the constitution defines what it takes for a constitutional amendment to be valid, that is, constitutional

Oh, I disagree. The Constitution doesn't say anything like that. We could pass a constitutional amendment today declaring that drawing and quartering was acceptible, and it would be perfectly legitimate. OK, it'd be butal and "cruel and unusual" and all of that, but it'd still be the law of the land.

[21, 23] -

Now here's where we see eye-to-eye. I agree with your interpretation completely. Marbury aside, the branches are CO-equal. Period. I even defended Newt Gingrich when he pointed this out earlier this year. Andrew Jackson and (take your choice) the Second Bank of the US or the Indian policy is the best example of this. Again, this is an unusal viewpoint in today's world, but I do heartily agree about the co-equal nature of the three branches.

SCOTUS is free to dictate what the Constitution means. The other two branches are free to ignore it. Shocking, but true.

Michale [24] -

You just made a brilliant argument why Citizens United is horse puckey, as it overturned a century of election law while it took a big dump on stare decisis (hope I spelled that right). You do realize that, don't you?

Heh.

[25] -

Yes, I did see that when you earlier posted it. Man, that tent is HILARIOUS! The perfect thing to visit a camping Grateful Dead show (if they still existed... sigh...).

Check the photo out, folks, it's worth it.

:-)

LewDan [26] -

OK, we're back to disagreeing. There is simply NOTHING in either the Constitution itself or even the Marbury coup that says that SCOTUS has ANY sort of influence or adjudication powers on amendments, previous or future. They just have to swallow it whole, in other words, even though they can gut the intent, as with XXVII.

David [27] -

Oooo.... SNAP! (Do people even say that anymore?)

Excellent Reagan point.

[30] -

That is exactly what I was saying. But I have to admit, you put it better than I did.

:-)

-CW

Chris-
I had to look up Marbury v. Madison to understand this a bit better.

It's really quite brilliant. What I think it means is that the court wouldn't even have the ability to be reviewing laws and executive actions according to the Constitution if the document itself weren't a living document.

In other words, "founder's intent" wouldn't even exist if not for an earlier interpretation of the Constitution as a living document.

-David

Health care can be purchased. Happiness can't be purchased directly and therefore can't be a commodity. That is, you can't go somewhere and ask for several bars of happiness.

Oddly enough though, this first flaw actually aids any argument that health care is a commodity.

The other flaw is that I believe I recall a certain document which helped enshrine the rights of "life, liberty, and the pursuit of happiness" as actual rights of individuals in our country.

I do believe as well though that these beliefs are at the heart of the health care debate.

While I lean towards the belief that its a right, my personal belief is this isn't as cut and dry as one or the other. Because it is something that entails "cost," I don't think the commodity aspect of it can be ignored.

-David

If a bunch of white CongressCritters were to get together and say, "Ya know... The Congressional Black Caucus is railroading a white Attorney General. So when the CBC starts speaking about how bad the AG is, all us white folks should just up and leave..."

Now, if that were to happen, wouldn't Democrats be screaming "RACISM" to the highest heavens???

Of course they would... And rightly so!!!

Then someone... ANYONE... please explain to me why THIS....

Black Lawmakers Plot 'Walkout Strategy' During Holder Contempt Vote
http://influencealley.nationaljournal.com/2012/06/black-lawmakers-plot-walkout-s.php

..... is acceptable in this day and age????

Why is "black pride" acceptable, but "white pride" is racist???

Why is "gay pride" acceptable, but "heterosexual pride" is bigoted??

How did this country get so frak'ed up polarized???

Anyone??? Anyone??? Beuhler???

Michale.....

Did you know, Michale, that health care already is a right in our country?

Reagan made it so when he signed a law into effect stating that no emergency room could turn down patients.

This is just a terribly inefficient way of providing health care. If you've been in one recently, you'll see that they're clogged w/ people who are in there for things like the flu.

Repealing any of the Affordable Care Act isn't going to change that health care is already a right.

It's just a right that could be done much better.

-David

Its occurred to me (belatedly, sorry!) that you're referring to existing amendments when you say SCOTUS can't invalidate a constitutional amendment. I agree, because the country would never stand for it. Although if you accept the position of Marbury overrules the Constitution then there wouldn't be anything anyone could do about it if they did. As I say I don't accept that position and I'd put heavy quatloos on the government and the people doing something about it if they did.

But what I was really referring to was future amendments, such as one to explicitly reject the courts ideology and reverse Citizen's United, for example. I don't see SCOTUS simply refusing to accept such an amendment as legitimate as any different than what they did in Bush v Gore.

Michale,

Get back to me when you've an argument that makes sense. By your logic we should still be a British colony just because we were one for so long. Lamest argument I've ever seen.—Here on planet Earth things are subject to change without notice.

By the, did you see your future XMAS present?? :D

http://tinyurl.com/8xme5dx

Michale.....

Yes, the SCOTUS gave it to themselves....

209 years ago...

I mean, maybe it just me, but if the American people have accepted an idea for over 200 years, then maybe that means that the American People would SEEM to be OK with it..

Yes, there is slavery... And yes, the American people accepted the idea of slavery for hundreds of years..

But then we grew out of that and did away with it..

So, when the American people tire of Maybury, then we might do away with the SCOTUS...

Dunno if that would be a pleasant world to live in, but the point is, that is then and this is now..

Now, if you want to jump in your handy dandy time machine and jump back to 1803, you can maybe successfully argue against Maybury v Madison...

Until such time as you can do that (please let us know so we can all huddle in our temporal proof rooms) we're stuck with the reality of the here and now...

And, in the here and now, the SCOTUS is the final arbiter...

Michale.....

No one ever gave SOCTUS the power to rule, that's my point. They gave it to themselves. As I've said before this country was founded based on the idea that government governs only with the consent of the governed. Its why the Constitution was ratified by popular vote and why we have elections to this day.

SCOTUS' little coup in Marbury repudiates that idea. They self-appoint themselves to run the country any way they see fit, not how we, through our laws and representatives see fit. Which is why Republicans are so ecstatic. The radical agendas they've been unable to legislate democratically for the last fifty-years can now be imposed by their four sycophants on the court whether we like it or not, whether its legal (formerly) or not. Coup accomplished. Democracy overthrown. Welcome to the brave new world eagerly embraced by thirty-seven Republican legislatures breathlessly enacting obviously unconstitutional laws in expectation that their pet Justices will magically make them all "legal."

It's shaping up to be END OF DAYS.... :D

Michale.....

As to Marbury, I agree its the role of SCOTUS to arbitrate. Where I disagree is with the notion that its the law that SCOTUS decisions must be accepted. I'm more inclined to the view that as a practical matter SCOTUS decisions generally will be, and should be, accepted. But that it certainly isn't the law and that any two branches of government, in agreement should overrule the third even if its SCOTUS because they all have a responsibility to uphold the Constitution.

As an aside, one of the unintended consequences of Marbury is that Congress, in particular, feels no need to obey the Constitution in crafting legislation because the notion that any legislation is constitutional unless and until SCOTUS strikes it down absolves Congress of any and all responsibility, even if legislation is blatantly unconstitutional on its face. That too, obviously, was not what the framers intended.

It also greatly weakens the public's franchise as voters since Marbury says that none of the three branches of government are held accountable to voters for upholding the Constitution since that's the sole province of the only unelected branch of government.

If constitutionality were as clear-cut as a lot of people aver, then we wouldn't need the Supremes to make these sorts of decisions, now would we?

"Aye,? and if my grandmother had wheels, she'd be a wagon."
-Scotty, STAR TREK III, The Search For Spock

Don't get me wrong, CW.. I am agreeing with you completely..

I just read that and Scotty's line from STIII hit me.. :D

Michale's agreeing with me? Wow, it does look like a fun day...

I gotta throw out a bone now and again, else ya would tire of me.. :D

I have to applaud your views on the court, though, as they are fairly similar to my own. I'd put it as "Sometimes SCOTUS gets things wrong, but we're all only human, and while I can rail about their wrongheaded decisions in the hopes a future court will overturn them, I am forced to abide by their decisions just like all other Americans."

Yea, it really galls me that a LOT of people (no Weigantians, thank gods) will be all about letting the SCOTUS decide this and that, but when the SCOTUS does rule and it's not to their liking, they scream and yell...

I don't want to be like that..

For better or for worse, the SCOTUS is the final authority..

Barring Admendment Action by Congress, that is...

Speaking of which, you still above water down there in sunny FL? Hope everything's copacetic chez Michale....

I tell ya, all the women in my life (at least of the Hurricane variety) are nothing but teases... I woke up this morning and was AMAZED to find out that DEBBY had passed over during the night. Nothing but a little rain... Whatta letdown.. :D

Michale.....

Since the constitution defines what it takes for a constitutional amendment to be valid, that is, constitutional, and if SCOTUS alone determines whether the constitution has been followed what makes you say they can't declare an amendment unconstitutional? My whole point is that SCOTUS determining what's constitutional, rather than the constitution, is an oxymoron.

"I run my unit how I run my unit. You want to investigate me, roll the dice and take your chances. I eat breakfast 300 yards from 4000 Cubans who are trained to kill me, so don't think for one second that you can come down here, flash a badge, and make me nervous."
-Colonel Nathan R Jessup, Commander, Marine Ground Forces, Guantanamo Bay, Cuba
A FEW GOOD MEN

:D

Michale.....

Wow, didn't think a rerun would garner this much interest!

One thing I've thought of since writing this, it always amazes me when people (right left and center) assert that their idea is "constitutional" or "unconstitutional" on its face, as if the designation were like the answer to a math problem. But it's not as clear-cut or binary a thing. It's not like saying "the answer to the problem is either a negative or positive number"... or maybe it is. What about zero? It's neither.

If constitutionality were as clear-cut as a lot of people aver, then we wouldn't need the Supremes to make these sorts of decisions, now would we?

OK, with that off my chest, let's take a look at the comments...

David [1] -

The proof that the Constitution is indeed a "living document" and that the "framers' intent" is a load of bushwah is Marbury v. Madison itself. One might poetically say that life was breathed into the Constiution in that decision, a decade and a half after it was created. It's the ultimate argument that the Framers missed some stuff in the original document -- judicial review itself.

Michale [3] -

Michale's agreeing with me? Wow, it does look like a fun day...

nypoet22 [4] -

Nice quote. I usually go with Frank Herbert's definition of Gowachin Law -- the difference between bias and prejudice: bias means I will rule for your side if there is a way for me to do so, whereas prejudice means I will rule for your side no matter what evidence is presented to me. Bias was allowable, prejudice was not.

It's somewhat cynical (and a whole lot science-fictional), but it's an interesting point to draw the line.

Michale [5] -

Here's another quote, most likely from science fiction as well (Heinlein, maybe? Can't remember, could have been Robert Anton Wilson):

"Man is not a rational animal, but rather a rationalizing animal."

I have to applaud your views on the court, though, as they are fairly similar to my own. I'd put it as "Sometimes SCOTUS gets things wrong, but we're all only human, and while I can rail about their wrongheaded decisions in the hopes a future court will overturn them, I am forced to abide by their decisions just like all other Americans."

I bet you'd probably agree with that...

nypoet22 [9] -

OK, this quote's from the liner notes to Jethro Tull's "Aqualung":

"In the beginning Man created God; and in the
image of Man created he him."

If nothing else, you've got to admire the tortured syntax...

[10] -

Ooo! Big points for "ad vericundium"... had to go and look it up....

Also huge points for that story! That's the best "fighting City Hall" type of story I've heard in a LONG time, mostly because I think your mom and I would see eye-to-eye on the issue: "interpreting" literature is a fool's game. It used to piss me off no end to have an English teacher definitively tell me what Dickens or Poe or Swift "really meant" when writing. "How do you know?" I would always ask. "Did the author him(/her)self write that down anywhere? Or is that just the prevailing view among English teachers?" I got a lot of bad grades on tests and essays because of this, and likely tanked my AP English test on my interpretation of some Puritan writer's thoughts on how "work" was the holiest thing in any human's life (I violently disagreed with the author).

In any case, more power to your mom, and I lift a toast to her indominatable spirit in proving the righteousness of her position. It is people like her who move continents of calcified wrongheadedness, and I, for one, applaud her heartily!

This story is going right next to the story of the passage of the XXVIIth Amendment, in my lore of ad vericundium idiocy, and the individual spirits who fight the power.

LewDan [13] -

OK, we're going to have to agree to disagree on this one. Or maybe that we've been living under "an oligarchy ruled by the Constitution's weakest branch of government" since Marbury.

SCOTUS has no power over Constitutional Amendments, except interpretation. Now, you're right, they can gut an amendment's intent and power quite effectively. The XXVIIth is a perfect example. Right after it was passed, the Court ruled that COLAs "don't count" even automatic COLAs. This clearly is in violation of the spirit of XXVII -- and (as a kicker) the XXVIIth was actually PART OF THE ORIGINAL BILL OF RIGHTS (which originally had 12 amendments). So, right there, you can say "this is EXACTLY what the Founding Fathers intended, since they WROTE THE DAMN THING." But SCOTUS didn't even blink when they, essentially, gutted XXVII.

But... the text remains. Sooner or later (in a perfect world), a future SCOTUS will take another look at it. And they'll decide that the amendment means exactly what it says. And Congress' pay will be frozen for two years after each election.

The key here is that the text remains. On all other laws, the old law is overturned and forgotten, never to be heard from again at SCOTUS. Not so for amendments.

One other key point -- SCOTUS can indeed gut an amendment (as just discussed), but they CANNOT decide that the amendment itself is "unconstitutional" because it is an oxymoron to state this. It is PART of the Constitution, therefore, by definition, cannot contradict itself. So while the Court can do an end run around it, it cannot throw it out in any way. Maybe I'm splitting hairs, but to me that's a big difference.

But I am interested: do you agree with Marbury?

Michale [14] -

I don't recall Romney making political decisions that were so crassly and so blatantly panderous (is that even a word??) as to screw over the rest of the country.

But Romney never had the power to do so. Now, it can indeed be argued that he did the same thing for the state of Massachusetts (see: Obama ads up on a television near you).

Speaking of which, you still above water down there in sunny FL? Hope everything's copacetic chez Michale....

Lew Dan [15] -

Somehow conservative arguments always wind up claiming up is down and black is white.

Ironically enough, the individual mandate proves your point perfectly. Since, of course, it was originally a conservative argument to begin with (using the catchphrase "individual responsibility" and decrying the "free ride" some folks were getting in emergency room care).

It is to laugh, no?

Heh.

-CW

I disagree..

If we give them the authority to rule, then we have to accept the consequences of that decision..

You can't claim that the SCOTUS is the final arbiter of the Constitution and the cry "FOUL" when they make a ruling you don't like...

You, like the Republicans, always claim what's proper conduct is whatever you think supports and validates your position.

Consistency is the key...

Democrats scream and moan about "A" until "A" becomes necessary, then "A" is the living end, a god send, the bestest of the best.....

Citizens United?? Ring a bell???

Damn the Right all you want.. But, by and large, they make no bones or excuses for who they are and what they do..

Unlike Democrats who have to see which way the political winds are blowing before they decide to take a dump....

Michale......

Everything the federal government does is, by your definition, a commodity. Our government supplies services by purchasing products and services and them making them available to citizens. You are attempting to make a distinction where there is no difference. That mandating we pay the government so they can buy something is vastly different from the government ordering us to buy something ourselves is absurd. The only difference is that in the latter we have more freedom and an opportunity to at least choose for ourselves among available options. But in your convoluted view that's unconstitutional unless the government makes the decision and purchases for us using our tax dollars.

Somehow conservative arguments always wind up claiming up is down and black is white.

My overall point is the court rules how the court rules..

If we accept their authority before, we simply cannot call their rulings into question after...

Nonsense. Every act by every government official is to be evaluated on its own. That's the duty and responsibility of citizens inherent in the right to vote. There is no obligation to blindly submit to the power of the State. They represent us we are not subservient to them.

Rather than having to accept whatever SCOTUS decides if they continue to issue unconstitutional partisan corporatist decisions there'll simply eventually be another Tea Party. One that actually resembles the first one instead of the conservatives' Bizarro world version.

You, like the Republicans, always claim what's proper conduct is whatever you think supports and validates your position.

That IS the argument in a nutshell..

But, my way of thinking is, you have no right to healthcare the same way you have no right to happiness... Or, more accurately, the government has no responsibility to provide you health care any more than the government has the responsibility to provide you with happiness...

You have the right to ACQUIRE happiness.. As long as you don't interfere with another persons right to happiness, how you go about it is up to you..

Now, of course, you can argue that, by NOT electing to purchase health insurance, one is interfering with someone else's ability to purchase healthcare, but that argument, taken to it's logical conclusion would indicate that one must purchase EVERYTHING that anyone else MIGHT want, so as to keep the costs down...

That is a very slippery path to take. Much like the MANDATE is...

He believes, as anyone believes, that what he is doing is best for the country.

And yet, NO ONE has been able to show how these past few decisions are "best for the country"... Taking into account all the decisions (especially the latest one.. Executive Privilege my left butt cheek) one thing is clear that these decisions are what's best for Obama at the expense of the country...

Does Obama make political decisions? Of course. Just as Romney does. I don't see how one is somehow better than the other in this area.

I don't recall Romney making political decisions that were so crassly and so blatantly panderous (is that even a word??) as to screw over the rest of the country..

Like I said before. Obama's decisions are the same as if Bush would use his prosecutorial discretion to exempt corporations from anti-trust regulations in order to secure campaign donations..

Ya'all would go apeshit over something like that.

And that's exactly what Obama did...

Regardless, no need to rehash old arguments..

My overall point is the court rules how the court rules..

If we accept their authority before, we simply cannot call their rulings into question after...

Michale.....

The so-called legal basis for SCOTUS being the ultimate arbiter of all things constitutional, that SCOTUS sys it is, is circular logic, guts the checks-and-balances where SCOTUS is concerned and makes the weakest branch the strongest. Its exactly the kind of power-grab the founders did expect of the three branches and that those checks-and-balances were meant to forestall, not through constitutional amendments but simply by the other branches refusing to accept blatantly unconstitutional self-empowering decisions.

The fact that SCOTUS decisions have generally been accepted doesn't grant SOCTUS permanent legal authority without recourse. SCOTUS obviously was intended to issue rulings which by virtue of its independence and integrity would be generally accepted as reasonable arbitration. But we have a written constitution which defines the authorities and limits of the Federal Government for a reason. And corrupt branches of government like the current partisan ideologues sitting on the bench are that reason.

When the other branches view SCOTUS rulings as extra-constitutional or biased they have a constitutional right and duty to refuse to accept them not a pointless constitutional requirement to pass amendments. But since our judiciary has never had much respect for the law and even less for justice, so that the people have become inured to legal tricks that result in nonsensical rulings, this country has come to accept the fallacy that it is a constitutional republic where SCOTUS determines what is and isn't constitutional instead of recognizing two mutually exclusive concepts.

Fair enough. It might be a fine line between "guide" and "rule" but I catch your drift :)

BTW- In the interests of adding to the discussion, here's a good article which discusses the 2 ideologies guiding the healthcare debate: one is health care as a basic right, the other is that health care is a commodity.

http://www.salon.com/2012/06/27/tough_luck_becomes_law/

Obama claims his decisions are for the good of the country when it's obvious to anyone with more than two brain cells to rub together that they are for the good of Obama.

Like health care? Look how good that turned out for him politically.

He believes, as anyone believes, that what he is doing is best for the country. I'm sure Romney thinks the same.

Does Obama make political decisions? Of course. Just as Romney does. I don't see how one is somehow better than the other in this area.

-David

I don't know your ...ahem... intent here, but that right there was funny! :D

Michale....

when my mom was in high school she failed an item on a state test where she had to interpret the meaning of a poem. (that was back when students were allowed to see which items they got right or wrong on state tests.) when she saw that her answer was failed, she wanted proof. so, she took it upon herself to write to the poet and find out whether or not she had actually been mistaken.

as it turned out, the poet wrote her a letter saying that her interpretation had been his exact intent, and the state was incorrect to give the answer a failing mark. thenceforth, new york tests ceased the use of poems by poets who were still alive.

the supposed experts were mistaken, and the lowly high school student was correct. true story, and it demonstrates the fatal flaw in arguing based on the authority of individuals who are not around to tell us firsthand what they intended.

...and to what ends. that's my point, interpretation is subject to one's own ideals and goals, and that's what shows through. interpreting the constitution based on "founders' intent" is like interpreting the bible based on "god's will."

like law, there are many expert theologians who have devoted their lives to understanding and revealing the hidden meanings of biblical texts. however, the only entity whose will or intent any man can legitimately claim is his own.

As such, there is no way to keep ideology out of it.

I agree.. I might have said it poorly, but what I meant was that ideology can GUIDE a Justice, but it shouldn't RULE the Justice, if that makes any more sense..

The problem I have with Scalia is that he tries to claim that he is somehow above ideology. And then he hides this by claiming to know what some dead guys intended when they wrote the document.

Ironically enough, it's the same problem I have with Obama and HIS decisions.

Obama claims his decisions are for the good of the country when it's obvious to anyone with more than two brain cells to rub together that they are for the good of Obama...

There is no above ideology. He makes his decisions based on ideology as much as any other justice. Other justices are just not as dishonest about it.

If you are saying that choosing NOT to follow ideology is an ideological choice in itself, then I would agree with you...

Absolutely fantastic Thurgood Marshall quote.

As I would agree with that as well.. :D

Michale.....

Absolutely fantastic Thurgood Marshall quote.

This is exactly my point, nypoet. I'm not agreeing or disagreeing w/ Scalia. But the fact that he tries to say "others have an ideology and I don't" is ridiculous.

But their ideology shouldn't be the determining factor in their decisions. The Constitution should be.

But who determines what the Constitution means?

The Constitution is, as CW and you yourself have said, what the judges say it is.

As such, there is no way to keep ideology out of it.

It's very similar to the Bible. Religions differ depending on who is interpreting it.

Founder's intent is just as much an ideology as treating the Constitution as a living document.

The problem I have with Scalia is that he tries to claim that he is somehow above ideology. And then he hides this by claiming to know what some dead guys intended when they wrote the document.

B.S.

There is no above ideology. He makes his decisions based on ideology as much as any other justice. Other justices are just not as dishonest about it.

-David

That would be a fascinating thing to hear... But I doubt the Justices would acquiesce to imparting this knowledge upon us..

I would wager they would see it as justifying their decisions. No judge anywhere likes to have to do that.

if a judge sees him or herself as promoting an ideology of government, what's good for one is good for the other. i don't think justice ginsberg denies supporting an ideology, so neither should justice scalia.

Now, I might have a problem with this, depending on how you define "ideology"... Most often, in these pages, ideology means Left or Right, Liberal or Conservative..

Under that definition, I don't think the Justices should be imposing their ideology.

Their only ideology should be the US Constitution. Now, if their life experiences, training and education skews their view of the Constitution, OK.. That's fine...

But their ideology shouldn't be the determining factor in their decisions. The Constitution should be..

And we, as Americans, must accept their decisions as the final word without calling their motives into question.

The SCOTUS decides how the SCOTUS decides. If the Executive and Legislative branches of our government agree that the SCOTUS is the final word (and they have) and agree to abide by their decision, then that should hold as true AFTER the ruling as it holds true BEFORE the ruling...

The AZ v US ruling is a perfect example. I am not thrilled at all that the SCOTUS has left AZ at the mercy of the Federal Government. Especially in light of Obama's "Frak you, Arizona! Yer on yer own!" attitude after the ruling.

But I accept the ruling as the final word on the issue without hysterical claims of "ACTIVIST JUDGES!!!"

The court rules how the court rules. If I accept their authority before the fact, I MUST accept their decisions after the fact..

It may be a simplistic way of looking at things, but hay... I never claimed to be anything more than a simple knuckle-dragger.. :D

Having said all of that, if the SCOTUS upholds CrapCare in toto, then I have to be honest and say that all of the afore will be SEVERELY tested... :D

Michale.....

When one applauds the SCOTUS for judicial restraint, it simply means the person liked the court's ruling..

the question i have is how the judges themselves view their role. if a judge sees him or herself as promoting an ideology of government, what's good for one is good for the other. i don't think justice ginsberg denies supporting an ideology, so neither should justice scalia. rather than attempting to claim the intent of the founders, he ought to publicly accept that his intent is his own.

“What is the quality of your intent?

thurgood marshall

When one accuses the SCOTUS of being activist judges, that simply means one didn't like the court's ruling.

When one applauds the SCOTUS for judicial restraint, it simply means the person liked the court's ruling..

That sums things up perfectly... :D

Michale.....

I would think that "sheer arrogance" in a Supreme Court Justice would be a given. :D

"Of course I'm arrogant! I EARNED it! What's your excuse?"
-Q

:D

But I am constrained to point out that "sheer arrogance" is not just found in the Judiciary branch of our government. :D

Note: Three smilies in one comment.. It's gonna be a fun day.

Michale....

I remember this piece and it made me think of something which I read this week about Antonin Scalia which I can't believe hasn't been questioned further.

Scalia claims to oppose the idea of a "living Constitution". He's warned that "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views."

This is a great example of a half truth.

The half that it leaves out is that, to paraphase Scalia, the risk of interpreting the founders' intent with regard to the Constitution is just as easily likely to culminate in one's own views.

In other words, Scalia is claiming that others interpret the Constitution. Not him. Somehow he has knowledge into what the founding fathers intended.

This is not only complete BS, but also strikes me as sheer arrogance.

The truth of the matter is, as you point out, is that both of these justifications, "a living document" or claiming to be interpreting what the founders wanted, are merely justifications for a certain interpretation of the Constitution.

Basically, it means what they say it means and Scalia has proven that he's just as likely to be a judicial activist for his own views as any liberal judge.

He simply skirts criticism by claiming to understand what the founders wanted. Even though science to this day science has not produced a telepath who can read the thoughts of the dead.

-David