For all the constitutionalists...

[JanieDough]

seriously

no rotting corpses on the bench please

 

[pjbleek]

seriously

no rotting corpses on the bench please

the sad part of the process is that get these judges at the ripe old age of late 40s to 60s and they have a fricking life term!!!..and the American people have no say in this decision making at all...and most are too proud to step down and you have to wonder if their decision making does get deteriorated when then are on the bench past their bed time

 

[Alien Allen]

some form of a term limit should be imposed

100 years ago the average life span was about 20 years less.

These guys can end up on the bench for 40 years which is absurd as they are so insulated from reality even after probably 5 years let along 30-40

 

[Guyzerr]

some form of a term limit should be imposed

100 years ago the average life span was about 20 years less.

These guys can end up on the bench for 40 years which is absurd as they are so insulated from reality even after probably 5 years let along 30-40

Um....... wasn't your constitution written by a bunch of old bastards? :24:

 

[Tim]

Not all precedent is good though

and there are examples where earlier precedent is overturned

the latest example being with regard to campaign money and businesses

It may not be good precedent but it's law and as binding as the constitution is. As far as overturning precedent, it's almost unheard of. The court will require new facts in the case before they would even consider hearing it.

Legal precedents, much like laws, can be overturned. Thus, the decision of the Supreme Court could still be found unconstitutional by a later court.

You're right, a court can come to a different conclusion later which would overturn the earlier ruling. The only other way to change precedent is to pass a constitutional amendment but you know that is next to impossible.
But look through history and you can see that the supreme court is extremely unwilling to review previous cases unless they have different or new facts in the case that are compelling. And you can count on one hand how many times this has happened in over 200 years.

So again, my point goes to those who want to "go back" to a strict interpretation of the constitution. And my question to them is "what do we do with the 222 years of supreme court precedent?"
Most of the people I talk to that are "constitutionalists" they don't even know about precedent or how it is just as much a part of our laws as the constitution is.

 

[Minor Axis]

Most of the people I talk to that are "constitutionalists" they don't even know about precedent or how it is just as much a part of our laws as the constitution is.

I do! I do! (raises hand).

 

[Alien Allen]

It may not be good precedent but it's law and as binding as the constitution is. As far as overturning precedent, it's almost unheard of. The court will require new facts in the case before they would even consider hearing it.



You're right, a court can come to a different conclusion later which would overturn the earlier ruling. The only other way to change precedent is to pass a constitutional amendment but you know that is next to impossible.
But look through history and you can see that the supreme court is extremely unwilling to review previous cases unless they have different or new facts in the case that are compelling. And you can count on one hand how many times this has happened in over 200 years.

So again, my point goes to those who want to "go back" to a strict interpretation of the constitution. And my question to them is "what do we do with the 222 years of supreme court precedent?"
Most of the people I talk to that are "constitutionalists" they don't even know about precedent or how it is just as much a part of our laws as the constitution is.

next to impossible is not true.

it can happen

stability requires that there be a pretty good reason

Or stacking the court as FDR tried

 

[Accountable]

Apparently Rand Paul can't make up his mind if he is for earmarks or not. The Libertarian says no. The elected official waffles.

So in other words, he's keeping with the Washington traditions! :24:

Why would this be better?

I'm curious, who here thinks we would have been better off if no money had been injected into the economy after the bubble burst? [I do! I do!

] Would we be better off today or would the economy be a smoking ruin? [The two don't necessarily cancel each other out] Honestly I don't know. I do know that throwing money at the greedy bastards who orchistrated the problem while telling average citizens tough shit is not a balancd approach, as if we expect average citizens to be responsible, but place no such requirement on big business. They get a pass. [Agreed!] It's Republican thinking through and through. [So now Obama's a Republican? Oh that's right; he doesn't expect anyone to be responsible.]

I'm trying to see why this would be better? As a country do we want to be going in 50 directions or be more centralized in our efforts? Is there any country who functions in the manner you are proposing?

Why do we have to function like other countries? We've alway gone our own way, with other countries scrambling to catch up. It's time we start valuing our individualism again. Centralization only benefits the control freaks in charge. Isn't that what ya'll are supposed to be against?

 

[Accountable]

Unlike UK, the US constitution is RIGID. Even if majority wanted to change it the Supreme court will disallow unsuitable amendments. Any student of political science or comparative constitutions or governments can tell ya the pros and cons of different kinds of Constitutions...one constitution wouldn't suit conditions prevailing in another country...........and vice versa. India being the largest democracy in the world follows the British Parliamentary system wherein President has minor role, major functionary being the Prime Minister!

Not true. The Supreme Court interprets the law as following the Constitution or not. They don't have the power to overturn an amendment.

 

[Accountable]

Since you tried to answer my post I'll try to clarify my point.


I hear it over and over again, how we as a nation need to follow the constitution. That we have strayed from the vision our founding fathers had when they wrote the constitution. Is that your view on it as well? Absolutely.
I also believe that we should follow the constitution as closely as possible, after all it's the basis for all of our laws. But this isn't the point of my post nor is it the reason for the thread. See below...

Do you think we should live by the constitution as it was written and if it's not in there, then we shouldn't be doing it? Complete the idea. If it's not in there then we shouldn't be doing it now. If we should be doing it, then we should do it the right way - by installing an amendment. That way it would be in the Constitution, which we should live by.
Here is where you almost get my point but not quite, so let me clarify my point of this thread...
The constitution IS the basis from which all laws are measured and judged as to constitutionality. I think this is something we all agree on. But when people say we should go back to following the constitution, they are completely forgetting about the past 200 plus years of supreme court precedent. And this is my whole point of the thread, precedent cannot be thrown out, it cannot be ignored and is very rarely overturned. But supreme court precedent IS as much the law of the land as the constitution is. Let me repeat that last statement, Precedent IS as much the law as the constitution is.

The Supreme Court bases its decisions, or at least it's supposed to base its decisions, on the Constitution. That's its job. It does not look to precedent, because no court is superior to it. Therefore, all Supreme Court precedent is based upon and inferior to the Constitution. So, while their decisions do have the power of law, backed up by the Constitution, it can't be said that precedent law is equal to a constitutional amendment.

Let's look at it this way...

On June 21st 1788 the US Constitution was ratified. On that date, the constitution was the law of the land. As cases came before the supreme court and decisions were handed down, they also became law of the land. These laws are just as relevant as the constitution is, if not more. Far, far less. FDR packed the court and passed laws that the previous court had already declared unconstitutional. Such abuses should be redressed. This isn't the only example, just the first one that popped into my head.
Here is the problem, the supreme court almost NEVER goes back and overturns or readdresses previous cases. Precedent is almost as hard to change as the constitution itself. If you ever get a chance to look into it, you will see that the courts almost never goes back on previous rulings except in extreme cases like slavery as you mention below.

Later Courts' reluctance to overturn an earlier Court's bad decision is hardly justification to call it more relevant than the Constitution, which they can't overturn.

Fast forward 222 years to today and we live under the constitution with it's 27 amendments AND supreme court precedent. It doesn't matter whether you agree or disagree with any of the items in the constitution or any of the amendments or any of the supreme court precedents, they are still the law of the land today. So to say we need to get back to a constitutional government, how would you propose we do that seeing how precedent is just as binding as the original constitution is?
And before you suggest that we overturn any of the supreme courts rulings, understand that it is near impossible. When something is right and proper it shouldn't be abandoned simply because it is difficult. We'd still have slavery if everyone took your stance.

I see you offer no argument, so I'll take it that you agree to the principle, but that the inconvenience is too much for you to bear.

So with this understanding, do the cries for going back to a constitutional government fall under the category of bullshit talking points? Or is it just a matter of people not understanding how our laws work? Your premises are wrong. Unload your questions, because those are not the only two options.
Does my above question read differently now that I clarified my point? Our laws are based on the constitution, amendments and precedent. All are near set in stone, all carry the same weight and we as a nation cannot just choose to abandon any one of them like those who want to "go back" to the constitution want.

• Our constitutional laws are based on the Constitution and amendments. Don't forget that Bush signed at least one law knowing that it was unconstitutional. And the Supreme Court traditionally does not interpret a law unless someone challenges it.
• Supreme Court precedents are based on the Constitution and amendments.
• There are no federal laws in existence that I'm aware of that have been challenged and declared constitutional by the Supreme Court by way of supporting previous precedent. All Supreme Court precedent is officially based on the Constitution, however fictitious and specious the link may be.

I think a far better use of the nearly $2 trillion Washington politicians have recently gifted to their campaign contributors would have been to hire or assemble a team of constitutional litigators to go through and revisit this 222 years of Supreme Court precedent, applying a strict interpretation of the Constitution, and cleaning up the mess that activist courts such as the one FDR installed have made of our legislative system.

I also think a good amendment would be to require any new federal law to contain a clause showing a direct link to a specific part of the Constitution, making the passing of an unconstitutional law far less likely.

Doing these two things would, or should, return us at least a bit closer to a Constitution-based legal system.

 

[Accountable]

You mean by a different set of Supreme Court judges later on down the line right?

Kind of what I was saying - what is considered "constitutional" is meant to chance with the times, and always will as different waves of people interpret it differently - most of whom claim to be constitutionalists...and also blame the others for being "activists."

It's kind of ridiculous.

Legal argument is supposed to be based on logical argument, not fashionable opinions of the times. Logic does not change with the times. If an argument was logical before and is not logical now, it is because some basis of the argument changed, not the logic itself.

 

[Minor Axis]

The most interesting thing for me is that somehow Constitutionalists think that by reverting to THEIR strict interpretation of the Constitution all of our problems would be solved. :smiley24:

 

[Tim]

The Supreme Court bases its decisions, or at least it's supposed to base its decisions, on the Constitution. That's its job. It does not look to precedent, because no court is superior to it. Therefore, all Supreme Court precedent is based upon and inferior to the Constitution. So, while their decisions do have the power of law, backed up by the Constitution, it can't be said that precedent law is equal to a constitutional amendment.

Not true, precedent is always cited in supreme court decisions, cases are decided based on precedent as much as they are the constitution. If the justices only needed to weight the facts before them on a case to the constitution, their jobs would be extremely easy. But that isn't the case, they must research case law for direction.

 

[JanieDough]

Legal argument is supposed to be based on logical argument, not fashionable opinions of the times. Logic does not change with the times. If an argument was logical before and is not logical now, it is because some basis of the argument changed, not the logic itself.

But no human is 100% logical. We allow trends to influence the way we interpret the supporting paraphrases from the constitution.

For instance - abortion.


You can't logically base most arguments off of the constitution because it is so vague. Ben Frank had it right, he knew we would be too human and interpret and fight - it was his wet dream.

It's what makes us Americans

 

[Accountable]

But no human is 100% logical. We allow trends to influence the way we interpret the supporting paraphrases from the constitution.

For instance - abortion.


You can't logically base most arguments off of the constitution because it is so vague. Ben Frank had it right, he knew we would be too human and interpret and fight - it was his wet dream.

It's what makes us Americans

When things are too vague, we don't rely on bad logic and an egotistical attitude that we know better than everybody else. We vote on whether to amend the Constitution, and if we can't decide on a federal blanket option, then we let each state decide.... whether or not we personally agree with the outcome.

That's the system.