Posted on 03/03/2005 5:34:47 AM PST by totherightofu
Congratulations - you disagree with Mr. Justice Marshall...
;>)
He should consider his current health when becoming so haughty! I remember a man named Nebudcanezzar who became insane and crawled around on all fours, eating grass out in the field like an animal. Rehnquist should be careful when sets himself up as a god.
As Marshall says, just above, " -- Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, -- [ qualifiers redacted for clarity ] -- that courts, as well as other departments, are bound by that instrument. -- "
You really don't understand Marshall's way of writing, do you?
--- Yes; -- the Constitution is supreme over the court.
240
Congratulations - you disagree with Mr. Justice Marshall... ;>)
Congrats, you just made a completely nonsensical comment.
Marshall said that: " -- courts, as well as other departments, are bound by that instrument [the Constitution]. -- "
Read much?
Mr. Justice Marshall also claimed (contrary to the rules of logic) that the court possessed some sort of extra-constitutional right to "say what the law is."
"Read much?"
;>)
Mr. Justice Marshall also claimed (contrary to the rules of logic) that the court possessed some sort of extra-constitutional right to "say what the law is."
You can't quote that supposed 'claim' in context, without looking like a fool. --- Marshall never said that..
And thus shall it ever be.
Sure, in theory Congress could impeach and remove all 9 USSC justices from the court, and Bush could then appoint 9 more who would interpret the Constitution as it's author's intended. But that will only happen during one of those very rare occasions when flocks of equally rare winged pigs pass overhead on their annual migration to South America.
Regrettably, for all practical purposes Rehnquist is correct.
Frankly, your claim (and that of Mr. Justice Marshall) is directly analogous to the claim of any child who might say, "Yes, Mommy & Daddy, I'll do whatever you tell me" - while also claiming a right to determine the meaning of any command issued by the same two parents. The completely contradictory nature of the claims is obvious to everyone but you (and, apparently, Mr. Justice Marshall)...
;>)
That evokes an interesting image.
The foreign policy of President Bush has begun a firestorm of freedom in the Middle East.
Much should happen in the next few years that will make the Berlin wall falling pale in comparison.
Those, like Rehnquist, that sit in their ivory towers today, may see that same fire spread to the United States.
Mr. Justice Marshall also claimed (contrary to the rules of logic) that the court possessed some sort of extra-constitutional right to "say what the law is."
You can't quote that supposed 'claim' in context, without looking foolish. --- Marshall never said that the court "possessed some sort of extra-constitutional right"..
So, are you claiming that the Constitution delegates to the court the right to "say what the law is?"
Marshall explains the courts duty:
-- " --- If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it were a law?
This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.
If two laws conflict with each other the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act must govern the case to which they both apply. -- "
If not, such a claim is properly described as 'extra-constitutional,' no matter what your personal delusions may be. Frankly, your claim (and that of Mr. Justice Marshall) is directly analogous to the claim of any child who might say, "Yes, Mommy & Daddy, I'll do whatever you tell me" - while also claiming a right to determine the meaning of any command issued by the same two parents.
The USSC has a duty [under Article III] to try "cases arising under this Constitution"..
" --- If two laws conflict with each other the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. -- "
The completely contradictory nature of the claims is obvious to everyone but you (and, apparently, Mr. Justice Marshall)...
Again, the only 'contradiction' is in your mind, not in Marshall's.
His comments have been understood for over 200 years by everyone that is rational about the issue.
Sorry, but either A>B, or B>A - you can't have it both ways.
;>)
His comments have been understood for over 200 years by everyone that is rational about the issue.
Including, quite obviously, the majority in Roper v. Simmons. When those five political appointees decided to cite foreign law, and essentially ignore the written words of the Constitution, they no doubt did so with the 'understanding' (or, more properly, the excuse ;>) that "(i)t is emphatically the province and duty of the judicial department to say what the [Constitution] is." As the "judicial department" now attempts to foist their questionable 'opinion' on the rest of the country, they will no doubt claim "that courts, as well as other departments, are bound by [the Constitution]" - meaning the so-called 'living document,' of course, not the written contract. How convenient...
;>)
" --- If two laws conflict with each other the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. -- "
Again, the only 'contradiction' is in your mind, not in Marshall's words.
His comments have been understood for over 200 years by everyone that is rational about the issue.
Including, quite obviously, the majority in Roper v. Simmons. When those five political appointees decided to cite foreign law, and essentially ignore the written words of the Constitution, they no doubt did so with the 'understanding' (or, more properly, the excuse ;>) that "(i)t is emphatically the province and duty of the judicial department to say what the [Constitution] is."
Not at all. They are ignoring Marshalls main point in Marbury; " -- that courts, as well as other departments, are bound by [the Constitution] -- "
As the "judicial department" now attempts to foist their questionable 'opinion' on the rest of the country, they will no doubt claim "that courts, as well as other departments, are bound by [the Constitution]" - meaning the so-called 'living document,' of course, not the written contract. How convenient... ;>)
Babble on. There is "no doubt" you will find other things to delude yourself about. -- The fact remains, -- Marshall's opinion in Marbury contradicts Rehnquists recent remarks on impeachment.
In thinking about how to restore our Constitutional Republic by depoliticizing some of the decisions made by Congress and the President while limiting the damage that can be done by renegade justices, it seemed reasonable to me to extend the term of office for members of the House to four year, but to limit them to three terms which limit members of the House to twelve years in office. By extending that reasoning to the Senate, it would seem reasonable to limit members of the Senate to two terms or a total of twelve years in office. Someone elected to both bodies could theoretically serve a total of twentyfour years in Congress.
Turning to the Court, it would make sense to me that the terms for members of the judiciary should exceed eight years cutting off the opportunity to be re-appointed by the same President. A case could be made that the term should be longer than twelve years, avoiding the risk that up to a third of the Senate could reaffirm the nomination of the same judge. An argument could be made that there are nine justices and that the term should equal nine or a multiple of nine in order to turn over the Supreme Court in a reasonably periodic manner, ie one justice a year, three justices every three years. If conveniently turning over the Court makes sense, and it does to me, then I would be in favor of increasing the size of the court to at least 17 justices and limiting their term of office to seventeen years with one seat expiring every year. I would not argue with an even larger Court, say 19 or even 21 in order to ensure that no President would be able to appoint a majority of the Court. The House has a large number of members because the Founders knew that to a degree, there is safety in numbers. History has proven that we should consider this truth as it applies to the Court as well.
Actually, Thomas Jefferson and James Madison stated that the States, not the federal courts, have the ultimate power to interpret the Constitution - to 'say what the Constitution is.' Nice to see you do not believe Mr. Jefferson and Mr. Madison were "rational"...
;>)
They [the majority in Roper v. Simmons] are ignoring Marshalls main point in Marbury; " -- that courts, as well as other departments, are bound by [the Constitution] -- "
It is hardly surprising that they should ignore Mr. Justice Marshall's more restrictive comment, but NOT ignore the gigantic 'window of opportunity' he opened for them, now is it?
By the way, the point I raised is hardly recent. Jefferson and Madison asserted the States 'right to say what the Constitution is,' at least in part because the high court was complicit in the unconstitutional excesses of Adams' Federalist administration. (As you know, Marshall was also a Federalist, and one of Adams' last appointees. ;>) And John Taylor would not have raised the question of whether the Constiotution was supreme over the court, or the court supreme over the Constitution, if the subject had not been an issue at the time.
You really should attempt to familiarize yourself with historical fact...
;>)
Babble on. There is "no doubt" you will find other things to delude yourself about.
LOL! It is hardly 'babbling' to point out the illogical nature of certain arguments (whether yours, or Mr. Justice Marshall's). As Mr. Justice Scalia has noted, the Constitution nowhere grants the high court the final and exclusive power of constitutional review (the power to 'say what the Constitution is'). If you choose to defend your opposing claim, you will find yourself in bed with judicial activists (and on the losing side of logical & historical arguments) every time...
;>)
Please take the time to read the articles listed in Post 49. These five articles outline a simple, but very effective way to quickly recover the Constitutional Republic that we have lost to the socialists that now control our government. The keys to realizing the Reagan Renaissance are found here:
We can stop the madness before it is too late. But it will take leadership from people like yourself."
Actually, Thomas Jefferson and James Madison stated that the States, not the federal courts, have the ultimate power to interpret the Constitution - to 'say what the Constitution is.'
I agree, in the sense that it is the People in the States that actually wield that power.
Nice to see you do not believe Mr. Jefferson and Mr. Madison were "rational"... ;>)
How soon you forget that you were just arguing that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution. [Your irrationality is showing, kiddo]
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They [the majority in Roper v. Simmons] are ignoring Marshall's main point in Marbury; " -- that courts, as well as other departments, are bound by [the Constitution] -- "
It is hardly surprising that they should ignore Mr. Justice Marshall's more restrictive comment, but NOT ignore the gigantic 'window of opportunity' he opened for them, now is it?
Marshall 'opened a window'? -- Explain, if you can.
By the way, the point I raised is hardly recent. Jefferson and Madison asserted the States 'right to say what the Constitution is,' at least in part because the high court was complicit in the unconstitutional excesses of Adams' Federalist administration. (As you know, Marshall was also a Federalist, and one of Adams' last appointees. ;>) And John Taylor would not have raised the question of whether the Constiotution was supreme over the court, or the court supreme over the Constitution, if the subject had not been an issue at the time. You really should attempt to familiarize yourself with historical fact... ;>)
Babble on. That there is "no doubt" you will find other things to delude yourself about applies yet again.
LOL! It is hardly 'babbling' to point out the illogical nature of certain arguments (whether yours, or Mr. Justice Marshall's).
How droll that you imagine you've made logical points by comments like your 'historical fact' mini-essay.. Dream on.
As Mr. Justice Scalia has noted, the Constitution nowhere grants the high court the final and exclusive power of constitutional review (the power to 'say what the Constitution is').
Nor does Marshall. I agree with Marshall & Scalia. You're imagining that I do not. Silly you.
If you choose to defend your opposing claim, you will find yourself in bed with judicial activists (and on the losing side of logical & historical arguments) every time... ;>)
Whatever.. Dream on.
Congratulations!
;>)
How soon you forget that you were just arguing that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution. [Your irrationality is showing, kiddo]
Actually, the “irrationality” is entirely yours – I’ve never claimed “that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution.” You’ve just posted yet another ‘straw man argument’...
;>)
Marshall 'opened a window'? -- Explain, if you can.
Apparently you’ve never noticed activist judges issuing what amount to ‘rewrites’ of the Constitution, based on their supposed power to ‘say what the Constitution means’...
;>)
How droll that you imagine you've made logical points by comments like your 'historical fact' mini-essay.. Dream on.
Look’s like you need a little ‘remedial history’ to go with your ‘remedial reading.’ As James Madison noted:
”But it is objected that the [federal] judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort... [T]he proper answer to the objection is, that the resolution... supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
”However true, therefore, it may be, that the [federal] judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the [federal] government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
James Madison, Report on the Virginia Resolutions
Clearly, the authority of the federal court was limited by the States. Mr. Justice Marshall recognized no such limits: his opinion was equivalent to a carpenter claiming he would remain within the boundaries of a fence – while he was in the process of building the same fence. In short, the final and exclusive power to interpret the Constitution was not delegated to the federal government.
This was demonstrated by John Taylor in an entirely different fashion:
”The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts... Is the court supreme over the constitution, or the constitution supreme over the court?
”...[The] federal system required that the articles of union [Constitution] should be invested with supremacy, over the [federal] instruments created to obey and execute them. Hence they are declared to be so in reference to all these instruments, without excepting the federal court. And hence the right of altering these articles [amending the Constitution] is retained by these parties [the States]. In all treaties, the right of construction [interpretation] must be attached to the right of alteration, or the latter right would be destroyed... [T]he right of alteration being placed in the states, because they made it, and not in a consolidated people, because such a people did not make it; the right of construction is attached to the altering power, and not given to its own agents under the fictions assumed to sustain a national government...”
John Taylor, New Views of the Constitution of the United States
In short, the right to interpret the Constitution can not be separated from the right to amend, or the latter power “would be destroyed.” It may be news to you, but the right to amend does not reside with the federal courts. (By the way – the ‘new views’ referenced in the title of John Taylor’s text refer not to the author’s views, but to 'activist views' such as yours and Marshall’s... ;>)
Nor does Marshall. I agree with Marshall & Scalia. You're imagining that I do not. Silly you.
Actually, the "irrationality" is entirely yours – I've never claimed "that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution." You've just posted yet another 'straw man argument'... ;>)
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From the "Constitutional Question" thread, my post #176:
To: Who is John Galt?
Sorry kid, Montana is fully justified in fighting that unacceptable law. -- Their legislators are not having delusions, you are.
Actually, P_A_I is in "denial mode," and the State legislators are indeed "having delusions," if they believe a 'commerce clause challenge' is likely to be upheld by the high court & restore gun rights in Montana... ;>)
173 WiJG
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There you are; --- irrationally arguing that Montana's delusionary legislators are powerless to challenge the NFA of '34.
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