Supreme court justice Scalia dead!

InTheTrees

Amerika wrote: »

Then you can argue that everything is open to the interpretation of 9 politically nominated justices, as long as they make their rulings sound good, and therefore why even have a Constitution, Bill of Rights, and Amendments? Why not just let everything be decided by the courts?

It really is very simple and elegant the way it was set up. Its the "Checks and Balances".

The three branches, remember? If the Legislative branch doesn't like the decisions made by the Judicial, then they can pass another law that is differently worded.

There are procedures for impeaching Supreme Court justices too.

oscarBravo

Amerika wrote: »

Then you can argue that everything is open to the interpretation of 9 politically nominated justices, as long as they make their rulings sound good, and therefore why even have a Constitution, Bill of Rights, and Amendments? Why not just let everything be decided by the courts?

But I haven't argued that everything is open to interpretation by SCOTUS; I've argued that the job of interpreting the Constitution is the role of SCOTUS.

You appear to disagree. Are you arguing that there is no disagreement about the interpretation of the Constitution, or that someone other than the Supreme Court should determine such interpretation?

Again, what is it about the 10th Amendment that people don't seem to understand?

I'm not sure what an amendment about federalism has to do with interpretation of the Constitution.

vetinari

Amerika wrote: »

No, I think McConnell is hedging his bet at the current time. If a Republican wins then it’s a no-brainer. If Hillary wins, then they'll rush to nominate Merrick Garland because Hillary Clinton’s litmus test of for nominees seems only aimed at overturning already decided law, and therefore much worse than Garland.

If Hillary wins and Garland hasn't been nominated by then, his name will be withdrawn. I would think that's quite obvious.

Amerika

oscarBravo wrote: »

But I haven't argued that everything is open to interpretation by SCOTUS; I've argued that the job of interpreting the Constitution is the role of SCOTUS.

You appear to disagree. Are you arguing that there is no disagreement about the interpretation of the Constitution, or that someone other than the Supreme Court should determine such interpretation?

I’m saying the system for justice nominations is flawed, although it is written into the Constitution. The intent of the Founding Fathers was for a president to nominate someone with a devotion to the rule of law. Instead the president all too often chooses a person with beliefs and opinions who will most likely support the president's will. And it has become apparent that justices, especially the liberal ones IMO, are not neutral and base their decisions not off of law, but rather their own personal convictions.

I'm not sure what an amendment about federalism has to do with interpretation of the Constitution.

The Constitution makes clear that the states and the people are the ultimate possessors of all powers not specifically delegated to the federal government, and intended government to be limited in scope with enumerated powers, and does not have the authority to exceed those powers. The Supreme Court has increasingly deviated from this mandate and given the government too much power. The Supreme Court should refuse to hear many cases, and let the respective states decide their outcomes.

Amerika

InTheTrees wrote: »

It really is very simple and elegant the way it was set up. Its the "Checks and Balances".

The three branches, remember? If the Legislative branch doesn't like the decisions made by the Judicial, then they can pass another law that is differently worded.

There are procedures for impeaching Supreme Court justices too.

Unfortunately The Judicial Branch has been creating laws through decisions, and the Executive Branch has been creating laws through Executive Orders. The creation of Laws are the function of the Legislative Branch. Unfortunately with the Legislative Branch too equal politically, they never seem to have enough votes to override a presidential veto, or limit the SCOTUS in their overreach of responsibility.

Amerika

vetinari wrote: »

If Hillary wins and Garland hasn't been nominated by then, his name will be withdrawn. I would think that's quite obvious.

If Hillary wins in November, I see the Senate confirming Garland in December. Assuming Hillary isn't on her way hoosgow, that is.

FatherTed

Amerika wrote: »

If Hillary wins in November, I see the Senate confirming Garland in December. Assuming Hillary isn't on her way hoosgow, that is.

No chance. When Hillary wins, Garland will have already withdrawn so she can cherry pick her most liberal judge.

oscarBravo

Amerika wrote: »

The intent of the Founding Fathers was for a president to nominate someone with a devotion to the rule of law.

Was it? It doesn't say that in the Constitution.

InTheTrees

Amerika wrote: »

If Hillary wins in November, I see the Senate confirming Garland in December. Assuming Hillary isn't on her way hoosgow, that is.

You do? Wont the Senate be in recess?

So between the end of the election, Thanksgiving, Christmas, new year and then the inauguration on mid-Jan, you think the Senate will reconvene just to confirm Garland?

InTheTrees

Amerika wrote: »

Unfortunately The Judicial Branch has been creating laws through decisions, and the Executive Branch has been creating laws through Executive Orders. The creation of Laws are the function of the Legislative Branch.

No. The Executive Branch can make law. There are 22 agencies under the control of the Executive Branch.

The judicial branch "creating laws through decisions" doesnt really make sense does it? They can only decide on cases sent to them.

Amerika

oscarBravo wrote: »

Was it? It doesn't say that in the Constitution.

The Founding Fathers believed the president, and not the legislature, was best suited to selecting justices and other important federal officers, because they believed the president would represent all the people and lift the choices and the process from the usual political muck. We now know this is not the case and the president chooses a person with beliefs and opinions who will most likely support the president's will.

oscarBravo

Amerika wrote: »

The Founding Fathers believed the president, and not the legislature, was best suited to selecting justices and other important federal officers, because they believed the president would represent all the people and lift the choices and the process from the usual political muck.

It doesn't say that in the Constitution either.

Amerika

InTheTrees wrote: »

You do? Wont the Senate be in recess?

So between the end of the election, Thanksgiving, Christmas, new year and then the inauguration on mid-Jan, you think the Senate will reconvene just to confirm Garland?

I believe the 114th Congress will be in secession during the month of December from the 1st to the 16th.

Amerika

InTheTrees wrote: »

No. The Executive Branch can make law. There are 22 agencies under the control of the Executive Branch.

The judicial branch "creating laws through decisions" doesnt really make sense does it? They can only decide on cases sent to them.

Most recently, and regardless of how someone stands on the issue of gay marriage, the Supreme Court created law by judicial fiat, overriding democratic decision-making.

Amerika

FatherTed wrote: »

No chance. When Hillary wins, Garland will have already withdrawn so she can cherry pick her most liberal judge.

That is a possibility. But there is no love lost between Obama and the Clintons. I wonder if Obama would be willing to allow Hillary to screw with his legacy?

oscarBravo

Amerika wrote: »

Most recently, and regardless of how someone stands on the issue of gay marriage, the Supreme Court created law by judicial fiat, overriding democratic decision-making.

That's one take on it. Another is that the Court decided that laws prohibiting same-sex marriage - and thereby discriminating against same-sex couples - violate the equal protection clause of the 14th Amendment, and are therefore unconstitutional.

Manach

... or in other words indulging in the purest form of Judicial activitism "discovering" rights which heretofore never existed in the original meaning of the text: ironically a position which Judge Bork had written about.

oscarBravo

Manach wrote: »

... or in other words indulging in the purest form of Judicial activitism "discovering" rights which heretofore never existed in the original meaning of the text: ironically a position which Judge Bork had written about.

The right not to be discriminated against isn't (or shouldn't be) a newly-discovered one.

Manach

oscarBravo wrote: »

The right not to be discriminated against isn't (or shouldn't be) a newly-discovered one.

... but the ability to discover new and expansive rights is a never ending treasure chest with the concept of rights (at about 200+according to some scholars) being so diffuse one is seemly discriminated by some concept :rolleyes:

K-9

Manach wrote: »

... but the ability to discover new and expansive rights is a never ending treasure chest with the concept of rights (at about 200+according to some scholars) being so diffuse one is seemly discriminated by some concept :rolleyes:

Laws on discrimination/equality have to evolve otherwise we'd still have slavery, child labour and segregation.

Amerika

K-9 wrote: »

Laws on discrimination/equality have to evolve otherwise we'd still have slavery, child labour and segregation.

Up next… Polygamy, incest, pedophilia, beastiality?

PopePalpatine

Amerika wrote: »

Up next… Polygamy, incest, pedophilia, beastiality?

It's OK to just admit you're not interested in a reasonable discussion.

Amerika

PopePalpatine wrote: »

It's OK to just admit you're not interested in a reasonable discussion.

Before making some ignorant claim, answer me this... Are not all these things listed acceptable in some culture(s), somewhere?

Billy86

Amerika wrote: »

Up next… Polygamy, incest, pedophilia, beastiality?

What, precisely, in the wording of the Constitution, leads you to believe it is exclusively for a man and a woman?

And what was your opinion on the ruling to allow interracial marriages a few decades back?

PopePalpatine

Amerika wrote: »

Before making some ignorant claim, answer me this... Are not all these things listed acceptable in some culture(s), somewhere?

Incest, paedophilia and bestiality are all based on the violation of the rights of one of the individuals in the relationship, homosexuality isn't. Incest is the least clear-cut of these, as while normally there'd be some manipulation/grooming going on there have been cases where the participants were unaware that they were related.

As for paedophilia and bestiality, the child/animal involved has no capacity to consent to sexual acts.

Amerika

PopePalpatine wrote: »

Incest, paedophilia and bestiality are all based on the violation of the rights of one of the individuals in the relationship, homosexuality isn't. Incest is the least clear-cut of these, as while normally there'd be some manipulation/grooming going on there have been cases where the participants were unaware that they were related.

As for paedophilia and bestiality, the child/animal involved has no capacity to consent to sexual acts.

You’re basing your comments on current western cultural definitions. Could not these viewpoints and definitions ‘evolve’ over time? Is not the age of consent as low as 12 in some countries. Was not bestiality legal until just last year in Denmark?

Amerika

Billy86 wrote: »

What, precisely, in the wording of the Constitution, leads you to believe it is exclusively for a man and a woman?

And what was your opinion on the ruling to allow interracial marriages a few decades back?

The Constitution also does not outlaw polygamy, incest, paedophilia, nor beastiality. And I never had any problem with interracial marriages, ever.

Overheal

Amerika wrote: »

You’re basing your comments on current western cultural definitions. Could not these viewpoints and definitions ‘evolve’ over time? Is not the age of consent as low as 12 in some countries. Was not bestiality legal until just last year in Denmark?

The Constitution also doesn't set the age of consent...

Amerika

Overheal wrote: »

The Constitution also doesn't set the age of consent...

Correct. Are you saying that the age of consent should be a state's rights sort of thing, or that there should be no law against paedophilia because it's not in the Constitution?

Billy86

Amerika wrote: »

The Constitution also does not outlaw polygamy, incest, paedophilia, nor beastiality. And I never had any problem with interracial marriages, ever.

So, why was it such a travesty to allow SSM but not for interracial marriage?

Overheal

Amerika wrote: »

Correct. Are you saying that the age of consent should be a state's rights sort of thing, or that there should be no law against paedophilia because it's not in the Constitution?

The Supreme Court has already made constitutional rulings on abortion, which is really the roundabout juxtaposed argument you're trying to pin down for some attempt at dramatic flair. No such ruling has ever been established that the Constitution forbids the states to set age of consent law.

ancapailldorcha

Amerika wrote: »

Up next… Polygamy, incest, pedophilia, beastiality?

If this is all you have to add, please don't post in the thread.

Overheal

Plus if we are bringing anything Partisan to this I should add only one of the majority justices in Roe v Wade was a Democrat appointee...

ancapailldorcha

Don't question moderation on thread.

Overheal

When the courts away the mice will play.

"Supporters of the bill openly admit that it is unconstitutional, according to Dawn Johnsen, who teaches law at Indiana University. They mostly want to prevent as many abortions as possible"

http://www.economist.com/news/united-states/21695904-governor-has-signed-most-restrictive-abortion-law-country-running-against?fsrc=scn/fb/te/pe/ed/runningagainstroe

Brian?

Amerika wrote: »

Unfortunately The Judicial Branch has been creating laws through decisions, and the Executive Branch has been creating laws through Executive Orders. The creation of Laws are the function of the Legislative Branch. Unfortunately with the Legislative Branch too equal politically, they never seem to have enough votes to override a presidential veto, or limit the SCOTUS in their overreach of responsibility.

I hear this "legislating from the bench" mantra repeated so often it's lost all meaning. The SCOTUS only rules on laws that have been created in the legislative branch of government, they confirm whether a law is constitutional or not based on their interpretation of the constitution.

I honestly don't see how you see this as the SCOTUS "creating laws". The laws are on the books well before they rule.

Amerika

Brian? wrote: »

I hear this "legislating from the bench" mantra repeated so often it's lost all meaning. The SCOTUS only rules on laws that have been created in the legislative branch of government, they confirm whether a law is constitutional or not based on their interpretation of the constitution.

I honestly don't see how you see this as the SCOTUS "creating laws". The laws are on the books well before they rule.

And I have given two recent examples. In Roe vs Wade the Supreme Court overturned Texas’s law forbidding abortion, thwarting the will of the people as expressed by the legislature, and the Tenth Amendment . Also, Kelo vs City of New London, in which the court upheld the city’s condemnation of property, which allowed the city to exercise its eminent domain power and transfer property from homeowners to a private developer, and not for public use as is dictated in the Fifth Amendment.

oscarBravo

Amerika wrote: »

In Roe vs Wade the Supreme Court overturned Texas’s law forbidding abortion, thwarting the will of the people as expressed by the legislature, and the Tenth Amendment .

The Court found that that law violated the Fourteenth Amendment, and as such was unconstitutional. That's the Court's job, and that's what the Constitution is for - to prevent the states from passing laws that go against the fundamental values of the country.

So, no: the court didn't create legislation with Roe v Wade; it did its job and voided a state law that violated the US Constitution.

Amerika

oscarBravo wrote: »

The Court found that that law violated the First Amendment, and as such was unconstitutional. That's the Court's job, and that's what the Constitution is for - to prevent the states from passing laws that go against the fundamental values of the country.

So, no: the court didn't create legislation with Roe v Wade; it did its job and voided a state law that violated the US Constitution.

Incorrect, IMO. In Roe vs Wade the Supreme Court invented ‘substantive due process’ by simply saying some liberties are so important that no process would suffice to take them away... the basis for their decision. The Constitution does not say anything about that, and therefore abortion should have been left up to up to democratic choice in each state.

oscarBravo

Amerika wrote: »

Incorrect, IMO. In Roe vs Wade the Supreme Court invented ‘substantive due process’ by simply saying some liberties are so important that no process would suffice to take them away... the basis for their decision. The Constitution does not say anything about that, and therefore abortion should have been left up to up to democratic choice in each state.

Well, as I pointed out earlier, there are several things you believe in that the Constitution doesn't say anything about. I guess I'll just fall back to the core point that the Constitution means whatever SCOTUS says it means.

Brian?

Amerika wrote: »

Incorrect, IMO. In Roe vs Wade the Supreme Court invented ‘substantive due process’ by simply saying some liberties are so important that no process would suffice to take them away... the basis for their decision. The Constitution does not say anything about that, and therefore abortion should have been left up to up to democratic choice in each state.

I've read and re read the Roe v Wade decision. The decision invented nothing, it ruled on 14th amendment rights.

It ruled am existing law unconstitutional, that's nit legislating.

B_Wayne

Billy86 wrote: »

So, why was it such a travesty to allow SSM but not for interracial marriage?

Actually, by Amerika's logic, interracial marriage was unjust to allow it as it didn't go before a vote and wouldn't have been okay during the time of the founding fathers...

Amerika

B_Wayne wrote: »

Actually, by Amerika's logic, interracial marriage was unjust to allow it as it didn't go before a vote and wouldn't have been okay during the time of the founding fathers...

The Fifteenth Amendment fixed some of the problems, and later the Civil Rights Act of 1964. I have no problem legislating for social injustices, or even 'evolved' views, I just believe it shouldn’t be done from the bench.

oscarBravo

Amerika wrote: »

I have no problem legislating for social injustices...

Shouldn't it be up to the states to legislate for social injustice? In other words, if a state doesn't want civil rights, what right does the federal government have to dictate to them?

Amerika

oscarBravo wrote: »

Shouldn't it be up to the states to legislate for social injustice? In other words, if a state doesn't want civil rights, what right does the federal government have to dictate to them?

We had the Fifteenth Amendment and the Civil Rights Act of 1964. Neither were enacted by Supreme Court fiat.

oscarBravo

Amerika wrote: »

We had the Fifteenth Amendment and the Civil Rights Act of 1964. Neither were enacted by Supreme Court fiat.

I guess we're not talking about the Tenth Amendment anymore.

Amerika

oscarBravo wrote: »

I guess we're not talking about the Tenth Amendment anymore.

Sure we are. An Amendment to the Constitution is the law of the land. The Civil Rights Act was made law by Congress and remains law unless declared unconstitutional by the courts. If a judicial declaration of an Act determines it to be unconstitutional, it does not remove the law from the statute books, but only prevents the law from being enforced. Do you know if any state took it to court over it's constitutionality?

oscarBravo

Amerika wrote: »

The Civil Rights Act was made law by Congress and remains law unless declared unconstitutional by the courts.

...like the Texas law in Roe v Wade was?

Amerika

oscarBravo wrote: »

...like the Texas law in Roe v Wade was?

No. Again, in Roe vs Wade the Supreme Court invented ‘substantive due process’ by simply saying some liberties are so important that no process would suffice to take them away... the basis for their decision. Therefore they created law by fiat from the bench, and did not rule merely on the constitutionality of the case, as was their duty, IMO.

oscarBravo

Amerika wrote: »

...IMO.

Indeed.