What’s Wrong with the World

Do we need a Supreme Court decision to overturn previous decisions that have led to the current mess (not likely for at least a generation or three), or is there some other mechanism that can be invoked? I don't see how interposition/nullification could do anything but lead to another civil war.

Mr White,
The Constitution doesn't actually grant the federal courts the authority to rule whether legislation is or is not Constitutional, much less sole authority.

Furthermore, Constitutionally speaking, the federal courts -- including the Supreme Court -- are actually creatures of Congress; for (except for a few sorts explicitly spelled out in the Constitution) Congress has the authority to decree what sorts of cases the SC may or may not hear.

The Congress and the President have the obligation to ensure that their acts are Constitutional -- but, ultimately, it is the States and the People who enforce the Constitution, a task it which we have been failing for at least the past century. And yes, "civil war" is never off the table, if that is what it takes to compel Congress to abide by the terms of the Compact Between The States.

... grope-and-scan regime ...

Congress can rein in the TSA. They could defund the agency, for example. The TSA is part of the executive branch, so of course the executive branch could order that the procedures change.

The fact that the courts _permit_ the federal government to do questionably constitutional or unconstitutional things does not _require_ the government to do so, of course. My point in the post is that the other branches of government do not consider themselves in any way bound to restrain themselves voluntarily according to a common sense interpretation of the Constitution so long as they have some hope that the courts will take a non-common-sense view and will let them get away with something that they want to do.

This sort of lack of restraint is not _required_ by the courts but it is _encouraged_ by the view that nobody really knows what the Constitution means in any ordinary way and that therefore the other branches are not bound by the ordinary, prima facie meaning of the Constitution.

Furthermore, Constitutionally speaking, the federal courts -- including the Supreme Court -- are actually creatures of Congress; for (except for a few sorts explicitly spelled out in the Constitution) Congress has the authority to decree what sorts of cases the SC may or may not hear.

Ilion, I think you are probably right, with the exception that (it seems to me, anyway) that the Supreme Court must have the capacity to decide issues that bear directly on the Constitution itself. That is, Congress can decide that the SC has no jurisdiction over some law, some Congressional legislative act, but Congress cannot decide that the SC has no jurisdiction over some area of the Constitution. The Constitution precedes Congress, and the Constitution provides that the lower courts are wholly creatures of Congress insofar as Congress decides to constitute them, but the Constitution directly provides for the SC itself. The SC is not wholly a creature of Congress.

ultimately, it is the States and the People who enforce the Constitution, a task it which we have been failing for at least the past century. And yes, "civil war" is never off the table, if that is what it takes to compel Congress to abide by the terms of the Compact Between The States.

Jefferson and some of his cohort wanted to declare, by state declaration, certain acts of the federal gov null and void because they exceeded the constitutional powers of Congress. But it is clear that if each state does that separately for itself, then the Union cannot last more than a decade.

Much of the point of the 3 branches of the fed gov is to establish checks against too much power accruing into the hands of one force. It is also clear that the intended constitutional "check" that was supposed to prevent power from accruing to the federal gov as a whole didn't work - that of having the state legislators elect the senators. There is not now, and has not been for over 150 years, any operative check on the the fed power against the states' powers. That is why I suggest that we push a new amendment: If 60% of the states determine that a federal act (either law, judicial decision, or administrative act) exceeds the powers enumerated in the Constitution, then that act is null. The number should be more than a majority of the states, for otherwise a majority would simply vote to override each new act of Congress that it doesn't like, and would end up as a secondary Congress. But the number should be less than 75%, for that number is what is needed for an amendment, and it ought to be definitely easier for the states to say "hey, you guys didn't keep within the bounds of the powers WE LOANED TO YOU", than it is to amend the Constitution itself.

Lydia, not only was Bush irresponsible in the extreme for his nonsense with McCain-Feingold, but the SC was also. It refused to overturn the guts of the law even though it CLEARLY violates legal principles already elicited in other arenas. It is legally unjustifiable, and they had no business giving it a pass.

You are right that the constitution creates the scotus directly and provides direct but limited jurisdiction for it.

>> Jefferson and some of his cohort wanted to declare, by state declaration, certain acts of the federal gov null and void because they exceeded the constitutional powers of Congress. But it is clear that if each state does that separately for itself, then the Union cannot last more than a decade.

I'm not comfortable with states declaring fed acts null and void because the unclear formal nature of ithis likely can't be the foundation of a strong republic. But that doesn't mean a state can't dare the Feds to enforce something, and this would not mean the destruction of the union. It isn't that fragile, and there is not the ability to make war on the public for less than critical matters unless armed fed agencies such as the ATF are now sufficiently liberalized to follow orders with only faith in a sovereign state. Accepting the rule of law is one thing and meekly accepting illegitimate laws another.

There are all kinds of fed laws, regulations, and acts that require citizens to meekly comply and there is little the Feds could actually do if citizens refused to comply. Look at the civil disobediance in New England over enforcement of the Fugitive Slave Act. I believe it was Boston who proudly boasted they would never enforce it Today they send so much fed money to the states that is their leverage --cutting off funds like a parent to a petulant child. The will of the people would prevail. The problem is the people have been corrupted by the federal largess and aren't inclined to oppose fed acts because of this Requiring businesses to withhold taxes from payroll limits ability of people to oppose also. Suppose there was a widespread refusal to fund abortions with tax dollars using civil disobedience tactic of refusal to pay taxes and daring them to throw thousands of people in jail. Unless you are self employed it isn't even easy to oppose it this way.

Maybe the lynch-pin of the whole thing was not the separation of powers or the written constitution, but the man taking seriously his oath. He stopped believing almighty God would hold him to his sworn word, or judge him for breaking it, or that a gentleman's honor obligated him, or that his peers would condemn him. At some point the men elected didn't believe any of that medieval stuff, and then the only limit to government became whatever the office-holder could get away with.

The "living constitution" argument: that the constitution's meaning changes with time; is an illogical premise on its face.
The courts were never granted the power to assign new meaning to written law, only to judge by the written law. If provisions in the constitution become outdated, it is the responsibility of Congress and the States to enact a constitutional amendment to reflect that need. The framers didn't agonize over the constitution's wording only to have future generations reinvent new meanings for those words - just to suit "modern" society.

One of these days (hopefully) the public is going to wake up and realize this.

Ego is the enemy of common sense.

The Chicken

...or making assumptions that seem reasonable but are never tested. Sometimes, lack of knowledge can disguise itself as common sense. Common sense in engineering says the bumble bee can't fly.

The Chicken

Here is how I was taught to think about these matters back when I still lived in the hills of Vermont.

Any of the Branches of Govt, the Executive Branch, or the Legislative Branch, or the Judicial Branch, can declare an act Unconstitutional and the idea that it is only the SCOTUS which has the authority to decide whether this or that act is Unconstitutional is intellectual suicide (and kills Liberty in the collateral damage)in that such an idea would totally destroy the balance of power and make one of the Branches, um, Supreme and the others, relatively, supine.

IOW, Bush should not have signed the Legislation and in refusing to sign it he should have said that he, as representative of the Executive Branch, was declaring the legislation Unconstitutional.

The Stupid Party has won the Executive Branch several times since I have been alive and the fact the Executive Branch refuses to discharge their Oath of Office vis a vis The Constitution means, to me at least, that we live under a Tyranny, and that The Stupid Party is only too happy to succor it.

Period.

Look, when the SCOTUS took the Roe V Wade decision, the POTUS was a member of The Stupid Party and he had the DUTY to declare the SCOTUS' decision Unconstitutional.

Had he done that, that would have been THE healthiest act of liberty to have occurred in my life time.

Now, I'd appreciate it if anyone can show me where I am wrong.

(Everything I ever learned about The Constitution was learned in Vermont and in the great novel, "Crashmaker.")

I suggest reading Michael O'Brien's "Eclipse of the Sun" for a look at where we might be headed!

"Look, when the SCOTUS took the Roe V Wade decision, the POTUS was a member of The Stupid Party and he had the DUTY to declare the SCOTUS' decision Unconstitutional."

This, from Orin Kerr over at VC, may be of interest,

"In a recent comment thread, commenter Leo Marvin asked an interesting question on why it is so common to blend together interpretations of what constitutional law “is” with what constitutional law “should be.” That is, why is it so common for people to infuse their readings of the current state of constitutional law with their preferences for what they want that state to be?"

While the notion that the president can declare a law unconstitutional is novel, to say the least, there is an issue here. Everyone does take an oath to up hold the constitution. With the expansion of the office of White House Counsel there can be a certain tension between that office and the AG's Office of Legal Counsel which is supposed to provide legal advice to the president. In the previous administration the OLC was stacked with the likes of John Yoo who gave the desired answer instead of the constitutional one.

The national security state has morphed into the national surveillance state. SC Justices that are likely to defer to the power of the executive are the ones who get appointed. That is the common thread with both Bush and Obama appointees.

"Moreover, such abdication also encourages the other two branches to try to get away with whatever they can. If they have some hope that SCOTUS will let it fly, why bother with constitutionally motivated self-restraint?"

The Constitution, and its checks and balances, was designed to be used by Enlightenment inspired gentlemen. Self restraint is internally motivated and, anyway, is not a feature of our present culture. Presidential systems don't work well with ideologically distinct parties as we are finding out.

Oops, link,

http://volokh.com/2010/12/12/distinguishing-descriptive-from-normative-readings-of-constitutional-law/

While the notion that the president can declare a law unconstitutional is novel, to say the least, there is an issue here.

It may be novel to the experts but I see absolutely no philosophical reason why the Executive Branch would be prohibited from declaring Unconstitutional any act by either of the other two Branches of Govt.

And, of course, the same would be true for the other two branches vis a vis The Executive Branch.

It would be much more conducive to liberty if the three branches were truly separate and equal.

Imagine if that were the case when the SULKs (Supreme Liberty Killers) of The SCOTUS took their Lawrence V Texas decision. Bush, as he should have, could have declared the decision Unconstitutional and we the people, through The Franchise in selecting The POTUS and member of the LOTUS would be determining what The Constitution means.

You know, I can't prove it, but I think even Conservative Hero, Robert Bork, must have gotten hold of some tainted marijuana in Itchycoo Park if he expects me to even become inured to the idea that The 10th Amendment is a dead letter.

On usurpation, Perhaps some astute tinkering with a new Judicial Act, not sure, but a super majority escape clause, or restrictions or requirements to defer to prevent some incompetent ambulance chasing hack or ex divorce lawyer from singly negating a duly enacted law.
This might not solve the problem but could lessen the urge of egotistical nonentities to exercise power they misuse.
The easier thing would be for the other two branches to assert themselves, as should have happened in the recent court decision on DADT, where the judge could have been reminded who and what the Commander in Chief is.

Dear Al. I just went and read the post you linked to and found it to be illustrative of the point I am getting at. Who died, resurrected and made The Judiciary the sole judge of whether an action/law is or isn't Constitutional?

The gentleman addresses the problem of Constitutional eisegesis but he doesn't get around to pointing-out in The Constitution where'n'hell The Judiciary gets its putative sole authority to decide the Constitutionality of this that or the other thing.

Protestant America is a very odd place in that it is thought a perfectly fine thing for individuals to read and interpret Holy Writ for themselves but not for The Constitution. No, for that we need Judges.

And isn't it odd that even though Holy Writ does record Our Lord and Saviour as establishing an authoritative Church we Americans are told we can read the Bible and decide for ourselves what it means while at the same time we in America are warned of the foolishness of reading and interpreting The Constitution for our own selves even though it is no where recorded in The Constitution which Branch of The Govt has sole authority in that area.

Anyways, I am done. I know I am way over my head here but what has come to be acceptable in this country in terms of what is and isn't Constitutional is a flat out abomination and when the little lay man like me hates The SCOTUS and thinks that what he is being told about, say, the First Amendment, in many instances, means is the exact opposite of what it clearly states then that is not a healthy thing.

As for me, The Constitution can go to hell and it can be hand-delivered to Satan his own self by The SCOTUS.

As for me, The Constitution can go to hell and it can be hand-delivered to Satan his own self by The SCOTUS.

Hey. Obviously the Founding Fathers had to ratify the Constitution to find out what was in it. :)

Because men have forsaken God and Jesus Christ, they have sunk to the depths of evil. They waste their energies and consume their time and efforts in vain sterile attempts to find a remedy for these ills, but without even being successful in saving what little remains from the existing ruin. It was a quite general desire that both our laws and our governments should exist without recognizing God or Jesus Christ, on the theory that all authority comes from men, not from God. Because of such an assumption, these theorists fell very short of being able to bestow upon law not only those sanctions which it must possess but also that secure basis for the supreme criterion of justice which even a pagan philosopher like Cicero saw clearly could not be derived except from the divine law. --Pius XI

Dear Lydia,

The United States Sheeple aren’t bothered much by the TSA peeping Toms and molesters or they would refuse to fly in mass and the policy would be rescinded. If I have to fly for my job I will because I don’t give a rat’s toenail what they look at but I will not put my wife and children on an airplane.