Friday, September 18, 2015

Should we just abolish the Supreme Court altogether?

After reading TS's exchange with William and Kingston a few threads ago and after watching Rick Santorum talk for several weeks now, I'm kinda wondering why bother having a SCOTUS at all. TS, IMO, is the only person on this board, and I mean only person, who is entirely consistent with his view. When he chided William for being no better than liberals because he just happens to be pissed about the ruling on gay marriage, I felt like that nailed just about everyone who posts here. Most of us get torqued because a ruling doesn't go our way, but will be quite content to accept a SCOTUS ruling that we believe fixes (or forbids) something we don't agree with.

IMO, it seems that the job of the Supremes is to interpret whether laws that are passed square with the constitution. However, this is an entirely subjective thing which is starting to make me think the whole thing is just a waste of time. Stack the court with a bunch of Scalia's, (or liberals) and you don't even have to bring a case up because you know what they will say. People like Scalia seem to be against any behavior that became socially acceptable after 1800 and he seems quite willing to let the states pass as many laws as they want to reflect that outlook. Liberal leaning judges, however, seem to believe that rulings should follow the "spirit" rather than exact letter of the constitution and are likely going to see it otherwise and be content to let federal law super cede local law in the interest of letting law reflect a more current social outlook rather than a locked in time and "dead document" outlook. Who is more correct, in such  cases, depends entirely on your outlook of world.

With that in mind, why not just get rid of it altogether and just let political majorities decide everything. It certainly seems to be headed that direction.

18 comments:

  1. Max
    An interesting post and which one would hope will engender constructive comment from both sides of the political divide.
    So, to the interpretation of the Constitution. Progressive thinking where the Supreme takes the view that the world is no longer flat, the US is a major player in affairs which influence the rest of the world and Above all, that the US has moved on from being an embryonic nation within the influence of the old world. If we follow that thread for a moment we can look at the words in the constitution and see the glaring errors and omissions. Look simply at Amendments one and two. The first guarantees freedom of speech to all citizens. At the time the constitution was carefully written and the Bill of Rights was meticulously penned by Madison, was there any belief that the post submitted by William concerning HRC a day or so back Would be published?. Was that the “freedom” the first envisaged and what do we think the founders would have drafted had Williams post been published at that time. I have taken the trouble to search for and read some of the pamphlets by the founders, even then the tone was somewhat offensive but nothing like the effort posted by William.

    For the second, there is nothing to be said which would emphasise the stupidity of welding the nation to centuries old conditions, more than the number of gun related deaths occurring in America on a daily basis. So yes, the Progressives have a valid point in trying to modernise the constitution ( and that is what this discussion is about)

    Tho opposing view, held by TS and William is untenable if we consider the changes within society which have rendered the constitution less relevant that at the time the founders sent it to the States for ratification. Where is the need for a militia, where is the restraint within interpersonal discourse which was fundamental to society in 1787?If we consider just the last problem, we can see need for fundamental change. William will never see the necessity to prevent publication of posts such as his or the books from which the quotes were extrapolated. William will in fact scream blue bloody murder that his reason for existence, the “Tea Party” may be prevented from despoiling your nation with the dissemination of such offensive publications.

    I must explain my anger and disquiet, it is not because the alleged comments by HRC have been published; it is because the authors have extrapolated them from books and published them as a list. There is no narrative in the so called “Book” it is simply a juvenile attempt to pillory a political opponent.

    So Max,cut out the functions of the Supreme? This may be a bit of a problem as the Constitution itself( Art 111) established the Supreme although it does authorise congress to order its operation.

    But I wonder Max why would you want to abolish the Supreme? If you want Congress to make all the decisions affecting the people, there is no limit to the despotic laws available to the lawmakers. I am thinking as much about my nation as yours in these concluding paragraphs. I think we both need and indeed, must have ultimate judicial oversight of government. The product is less than perfect but that perhaps is because in both cases the Supreme is politically appointed.

    We have, in the past week, seen the overthrow by a democratic vote in the Australian parliament of the Prime Minister of the nation. The Supreme (equivalent) was available if any party considered they had a grievance and the changeover was effected democratically and without recourse to the Queen.( I add the last sentence for the benefit of William,) although perhaps there are too many words of more than two syllables and no cussing in this post so William may have become lost.

    Cheers from Aussie

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    1. The question was basically rhetorical King. I feel I am basically pointing out has already happened rather than making an actual suggestion. The view of Republicans, who I must add are not really in line with TS, has basically just been the mirror view of liberals here. In states where Republicans have won the governorships and legislative bodies, they have simply taken the attitude that the constitution grants them independence to make their decisions and hence, they have written laws aplenty to come as close as possible to nullify decisions of the Supreme court they don't agree with. And when they haven't rewritten laws, they have gone on to perform actions like those of the woman in Kentucky. In essence, we have already achieved a state of affairs wherein most people left and right of center believe that it is perfectly fine to stack the court with ideologues in order to get the rulings we want. I don't think we should do this, but it seems to be the path we are on.

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  2. "Associate Justice James F. Byrnes, whose short tenure lasted from June 1941 to October 1942, was the last Justice without a law degree to be appointed; Stanley Forman Reed, who served on the Court from 1938 to 1957, was the last sitting Justice from such a background. In total, of the 112 Justices appointed to the Court, 46 have had law degrees, an additional 18 attended some law school but did not receive a degree, and 47 received their legal education without any law school attendance.[2]"

    We need more common men and women on the court.

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  3. William
    Years ago when I first began looking at political history in the US I stumbled across the name of James Barnes and it has stuck in my memory as being, at that time, the most overtly political appointment I had then seen. Of course there have been many(too many in fact) since but Barnes to an Australian the worst I had then seen. A non qualified legal man as a justice of the highest court in the land. I realized then that I was going to enjoy my studies; the arrogance was breathtaking!.
    Just yesterday when refreshing my memory, on the same site as Barns Official chronology, we find interposed between Barns resignation from his position as “Assistant President(sic) and the surrender of Germany to end the European war; the entry President Roosevelt assassinated. I was once again reminded of the uselessness of uncorroborated evidence on the net.
    It seems that the Birthers and others of limited intelligence were alive and well at the end of the war. It is said that God loves us all, I must agree with the time honored phrase, God Bless America. Some of you need divine protection from yourselves.

    Cheers from Aussie

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  4. King the constitution is a living document not a static written in stone artifact from a bygone era. It was meant to be and always has been a "framework" for developing a democratic government by the people. Even Thomas Jefferson stated that at the time it would do but he could foresee that changes would be needed as mankind developed and new technology was introduced into the population. Article one section 8 clause 18 is known as the necessary and proper clause. This clause shortened the route of changes in our laws by allowing the congress to enact laws without the need of new amendments every time a situation arose. Contrary to some here I feel that this document has worked exactly as designed.
    I agree with Max that the supreme court and their decisions on constitutionality of issues is suspect at best. Maybe the answer is to remove the political appointment and have justices elected by the people. But even in this solution whatever party is on the rise is apt to control the court at any given time. the "lifetime" appointment seems to have been the founders "Check" on the court being loaded by one group or another since political parties didn't exactly exist in America at the time, only differing opinions.

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  5. Rick
    My thanks but here you have hit the nail on the head, I was hoping someone would bring up One/8/18. Of course I met with this years ago and considered it dangerous and unwieldy. Perhaps my limited knowledge is deficient but does not this part of the constitution mean that the Supreme must verify the constitutionality of any legislation brought in by the Government. Always provided of course the Supreme is asked to adjudicate?. It was in fact this clause that I had in mind when I suggested to Max that both our nations need a Supreme Court.

    Cheers from Aussie.

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  6. I agree with both of you here, but of course, on just this site alone, there are several who are precisely 180 degrees in opposition to the view that the constitution is a living document and framework. Whether we agree or not on the point of the constitution being a living document, I think it was intended that no single group should hold so much power that others feel disenfranchised. One man's reasonable view is another man's view of tyranny. It's great and all that the constitution spells out what can and cannot occur, but in my mind, the words start to lose much meaning when the society they are inextricably wound to starts to collapse because of disenfranchisement.

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  7. Can someone tell me what the four words preceding the comma in Article I, Section 8, Clause 18 mean... And also words 3 through 16 of Article 6 Clause 2

    Is there really any ambiguity except for doublespeak injected by Harvard clowns....

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    1. "Is there really any ambiguity except for doublespeak injected by Harvard clowns...."

      Rhetorical?

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  8. You know, there is value in the constitution when a foreigner is permitted by those subject to the provisions of the document, to air his views, to argue, to criticize and to eventually improve his mind by such discourse. Whatever is wrong with the document, there is far more that is right with it.TS Perhaps we should go to the Federalist papers for a definition of the words.I have never previously tried to unpick the document but I will give it a go over the next few days.The FP may provide a clue as to the thinking of the times.

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    1. I read most of the Federalist Papers a long, long time ago and they fit my fervent thinking at the time very well. You suggest they may provide a clue as to the thinking of the time, and while they might, I respectfully think it's a little beside the point. At least, it is beside the point in that like I was saying up top, it reflects the views of a select group of individuals at a point in history that none of us have lived through. As such, it remains an exercise of opinion.

      While I disagree with the dead document view, I nonetheless concede that the government is not the problem. At the least, I believe the government is no better and no worse than the aspirations that sent the people there and clearly, there are a lot of pretty bitter aspirations and desires to make others conform to some biblical or liberal outlook. It doesn't seem to be working and that's not a great reflection on our society.

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    2. On form and sharp as a tack today I see King. Sometimes you remind me of Donald Trump but with a more refined delivery... Praising some, condescending to others all the while waving your arms hoping for attention.

      By the way, Yes that reading recommendation was indeed based on your comment. Rest assured however your tone and delivery were well noted before your afterthought. Whether the bullet point information was used to justify particular opinions or my opinions were shaped by facts such as the ones in the book are really irrelevant to you... they don’t fit your world view and repeated message therefore are unworthy of your time.

      Mike, King knows full well what he is talking about. He also knows the words have no ambiguity and that they have remained of constant definition since at least the 15th century...

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  9. TS Afraid I understand little in your post which compares myself to Donald Trump. Not wealthy, not attention seeking and certainly not waving my arms about. What I do seek is knowledge and if the only way to obtain this on a site such as AP then so be it. I am even prepared to wade through reams of your diatribes because there is always a kernel of factual information in there someplace.

    I have been looking at your question concerning the meaning of those four words before the comma. In fairness I looked to see if the question was genuine and gave you the benefit of the doubt by conditionally accepting it as a genuine enquiry.

    Further investigation and more importantly, further thinking, has unfortunately led me to the conclusion that your question is a frivolous one. I do not begrudge the two hours spent scanning various references, as always there was knowledge to be gained by so doing.

    I conclude by asking why you considered the question necessary and offer the opinion that we can all learn if we truly wish to do so. In your own case, you are surely better placed than many as you reside in a nation far from your homeland where the winds of change blow more softly up the kilts of your neighbours.

    Cheers from Aussie

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    1. Well I am sorry if you don’t get it from your perspective... half of communication is what is received irrespective of its original intent. Tone and timber count... sometimes we don’t hear ourselves as other do. Of course it is easy enough to blame it on the listeners attention span or intellect..

      For one seeking wisdom you spend an inordinate amount of time telling people that they are wrong. I don’t mind the exchanges because from time to time you say something that gives me pause for thought but to say that you are merely ‘seeking’ is somewhat disingenuous.

      It’s interesting that you point out how long suffering you are in extracting ‘kernels of factual information’ yet when presented with actual book facts your reply was: “afraid I have not the time nor the inclination to respond to the excerpts you have quoted. I feel that they do little more than occupy space which could have been better used in displaying your own thoughts.”

      Given that thoughts are opinions and opinions, while believed by the holder, don’t necessarily constitute fact... which do you want?

      With regards to the question I asked. Some people what to make the document signed and approved by the various colonies as some abstract charter to be considered merely as a framework or guidance to which one can creatively add any new ideas regardless of their conflict with the original provisions. You held up Article I, Section 8, Clause 18 as some fact which allows for unlimited action by the federal when you agreed with Rick. My point was twofold. One, the constitution, contrary to the open ended nature some would like it to have, gives the federal government duties and access to only limited parts of the entire governmental structure from individual self governance through local and state to federal. That is pointed out in what has been termed the ‘Necessary and Proper clause’.. also given the authority distorting name of the ‘Elastic Clause’. My point was that the clause gives the federal government authority to’ carry into “EXECUTION THE FOREGOING POWERS”’ . ‘Foregoing’ is now and, as far as my research suggests, has been since at least the 15th century, a term that indicating ‘the things listed above or stated previously’... not below, not in the next sentence or paragraph or clause not tomorrow.

      And Two, as I have said many times before, Article 6 Clause 2 allows for no ambiguity in stating the US Constitution is THE base Law and foundation for all laws that come after it and they will adhere to the provisions listed in it unless it (The Constitution) is changed.... period. Limited and unequivocal

      Your observation that Article I, Section 8, Clause 18 as being dangerous is true but only because there is a segment of society who wishes to negate the actual words of the document in the fulfillment of ‘their’ dream without having the votes necessary to force it one everyone else as well.

      By the way:
      Article II, Section 1

      "No person except a natural born Citizen, or a Citizen of the United States, >>> at the time of the Adoption of this Constitution <<<<, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

      Hamilton was a citizen of the US at the time of the adoption of the constitution and was fully capable and eligible to run for president...... Beyond the bullet that ended his life at 49 was his divisive nature and controversial opinions that made him refrain I suspect.

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  10. King as you read the Federalist papers keep this in mind. The federalist papers were written as what we would consider editorials in todays world. They were written to convince the delegates of mainly New York State and Pennsylvania to pass the constitution in it's current form without adding amendments, riders and conditions to the document. New York and Pennsylvania were important because they were the colonies of the most people who were not slaves. Although Virginia was larger by population 40% of Virginias inhabitants lived in slavery. So when reading the Federalist Papers one must consider what kind of slant was placed on the words that were written. Did the authors believe whole heartedly in what they were saying or were they writing to please the masses all along knowing that we were going to get the government we have today. Just think of Alexander Hamilton and what he said and what we later know he believed. there is some disconnect.

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  11. Rick
    As always my thanks, especially for the words of caution.
    Had considered the original reasons for the papers and concluded they were the bearers of political reasoning( for that, as always, read political persuasion to a given viewpoint).
    I had not considered the inference that they were modern day "Editorials" but of course this definition does fit perfectly .Particularly with some of the views of Hamilton. Soon after I became interested in your revolutionary history I came to the conclusion that Hamilton was the greatest American Politician not to become President. It was in fact so stated in my Bio on the old MW site. Such than was my ignorance that I had failed to comprehend that Hamilton by reason of his birth, failed the prerequisite tests to hold the office. I was put right by a long term member but I still consider Hamilton one of the greatest of the founders.Louman sent me a link for some verbal essays on the papers and these I find interesting.. I have on the desk as I type this a volume “Alexander Hamilton An Essay on American Union” Frederick Scott Oliver published by Constable and Co London 1906. I recommend this, even to Americans in your High Schools and early college years. For those of us coming at the subject from a zero knowledge base, it is a brilliant introduction to the makings of a nation.

    Cheers from Aussie.

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  12. The Court and Democracy

    by Jeffrey Rosen

    The Supreme Court plays a crucial but paradoxical role in American democracy. Many Americans think of it as the head of the least democratic branch of the federal government, designed by the framers of the U.S. Constitution to protect vulnerable minorities against the tyranny of the majority. From the decisions protecting the free speech of accused Communists in the Cold War era to the recent decisions protecting the rights of suspected terrorists after 9/11, the Court, at its best, has often appeared to defend fundamental principles of freedom and equality in the face of popular opposition. Nearly all of the most controversial issues in American politics -- from school prayer and gay rights to affirmative action and abortion -- end up before the Court, and justices are appointed for life precisely so they can consider these issues in constitutional rather than political terms. The Court's greatest power is judicial review, the power to strike down laws passed by federal and state legislatures, on the grounds that they violate basic principles in the Constitution. For all these reasons, it is easy to see why the justices are often praised -- or vilified -- for thwarting the will of the American people.

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  13. The life time appointments have always worried me a little. I can speak from experience when I say that one is not as sharp at eighty as one was at 60. One the plus side we can see the stability factor at play. Because the appointments are political, the Congress can be politically motivated in its decision to confirm the appointment. I remember the messy process when the first female Latino justice was appointed. Maria Sotomayor appears to have performed admirably although her early steps along the path to the position were impeded by the Right wing of politics. As to the necessity of the supreme, as with Australia, we must have something as a safeguard against misplaced idealism by the government and I for one can see no alternative. I was particularly interested in the reminder from William of those who had been appointed to the Supreme having no Legal degree. Hopefully this is a situation we shall not see again. Just as a comment though. I wonder which area of government has the authority to enact legislation to prevent unqualified persons from serving on the Supreme.

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