Hypothetical "collusion" question for FR Legal Minds

1. a candidate meets with a foreign agent to get dirt on their opponent, but no information changes hands. legal or illegal?

2. a candidate meets with a foreign agent to get dirt on their opponent, foreign agent gives info, but asks for no compensation. Legal or illegal?

3. a candidate meets with a foreign agent to get dirt on their opponent, foreign agent gives info, receives financial compensation. Legal or illegal?

4. a candidate meets with a foreign agent to get dirt on their opponent, foreign agent gives info, which was illegally obtained, but gets no compensation. Legal or Illegal?

5. a candidate meets with a foreign agent to get dirt on their opponent, foreign agent gives info, which was illegally obtained, gets financially compensated. Legal or illegal?

Who will make authoritative interpretations of federal law if not the courts? In Federalist No. 78, Alexander Hamilton observed of judges:

". . . To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."

Although it is often said that the Constitutional Convention did not contemplate judicial review, Hamilton's reference to "precedents" contemplates the common law method by which judges adhere to the rules of decision developed and announced in prior cases. Like it or not, capable and honest judges are the best method to interpret and apply statutes and constitutional provisions to the facts of specific controversies.

Of course, SCOTUS is assigned the judicial job of properly applying the Constitution to the facts of a particular case. No problem there.

However, ALL legislative powers are vested in Congress by the Constitution. The Constitution vests NO legislative powers to SCOTUS, only judicial power to decide individual cases and controversies that reaches to the parties of the case and any other case with similar questions of law and fact (”precedent)”.

All of that is fine, but keep something in mind. Beginning around 1900, SCOTUS and the feds began to ignore constitutional precedent and gradually changed the entire federal judiciary and rationale from supporting individual interests to “the public interest” (AKA government) with decisions usually not based on sound constitutional rationale .

Now, of course, the Left is all about “precedent” but if you dig deep enough you’ll find much of the Left’s “precedent” overturned previous precedent usually without a peep of constitutional rationale.

As far as valid precedent goes, it should be constitutional. If a case with the same questions of law and facts arises, then constitutional precedent is valid and has authority. There are not many of those animals left. To reach those kinds of decisions, you would have to leapfrog past the heretical post-1900 decisions and reach back for a valid constitutionally-based decision if there was one.

To right our listing judicial ship, there would need to be radical departure from unconstitutional precedent to sound constitutionally-based precedent. That would be a “new” beginning of valid, constitutionally-based consistency and reliability in the federal judiciary.

Remember, the Constitution as written and originally understood and intended trumps the feds including unconstitutional “precedent” (US Const, Art VI, Cl. 2 - must be “in pursuance” of the Constitution). How many don’t get that. Also remember, this is basically how America ran the ship until around 1900. It sailed very well. She needs a relaunch.

Most conservative scholars mark the New Deal and Warren Court eras as being the radical departures from Supreme Court precedent. It is not at all clear to me what decisions you are referring to as "beginning about 1900" other than the separate but equal doctrine of Plessy v. Ferguson in 1896. Notably, the decision in Lochner v. New York in 1905 striking down a state limit on bakery worker hours as violative of freedom of contract is usually seen as a high water mark of traditional Supreme Court constitutionalism.

One of the most destructive doctrines in US legal history gradually began to emerge around the turn of the 20th century - the infamous and utterly unconstitutional Incorporation Doctrine allowing the feds to enforce the first ten amendments via a twisted reading and application of the 14th Amendment bringing on a subsequent parade of horribles.

Without a word of explanation, these post-1900 decisions (don't have the names, but not hard to find decisions that gave the feds power to enforce any of the first ten amendments upon the states) overturned the precedent of the 1873 Slaughterhouse Cases which limited the 14A to its original intent by its ratifiers: giving ex-salves full citizenship status.

Oliver Wendell Holmes was a force against sound constitutional reasoning around the turn of the century.

I don't have the cases at hand, but it was a very subtle and gradual shift that began to take place where the rationale of Court opinions began to speak in terms of "public interest" (AKA the government) instead of individual interest.

Oliver Wendell Holmes was a force against sound constitutional reasoning around the turn of the century.

Would be a good research project. I have a site https://sonsofconstitutionalliberty.com/ where I'm sure I will need to detail this stuff out more at some point on a more case-by-case basis but I haven't done that yet. But in the meantime, it would be too hard to verify what I'm talking about. Robert Bork's landmark book, The Tempting of America, argues mainly the same thing and sites many cases.

I am familiar with constitutional law. The doctrine of incorporation of the Bill of Rights via the 14th Amendment did have major consequences, but it is only one of a set of innovations that altered the foundations of US constitutional law. Most of those changes are now cemented into place.

The larger point is that we conservatives tend too much to regard many key turns in US constitutional law as battles lost, almost as Southerners used to believe in the Confederacy as a Lost Cause that might have won, if only. Instead of ruing what has been lost and trying to resurrect obsolete legal doctrines, we should give greater consideration to what kind of constitution we are advocating for today.

For example, I suspect that, if they considered it, few Americans would want to lose the now long-established right to go to federal court to protect their constitutional rights against the depredations of state and local governments. That being so, our focus should be on the substance of the guarantees of the Bill of Rights. In most instances, there is a strong basis for conservative interpretations -- and that is where battles are still in the balance.

I am familiar with constitutional law.

Which one? The one they teach you in law school and bar review which has little to do with the actual Constitution as written and originally understood and intended? That is the Left's systemic attempt at essentially wiping out the Constitution because the Left loves big government tyranny. In law school, you spend little time actually reading the Constitution. In bar review they tell you that if you want to pass the bar, don't read the Constitution,, it will only confuse you. Listen instead to the bar review professor and you'll pass.

innovations that altered the foundations of US constitutional law

Perversions is more accurate.

Most of those changes are now cemented into place.

POW talk. If the Left can reverse 100+ years of constitutional decisions and pervert the Constitution into almost non-existence, then we can in turn reverse their heresy and perversion and set the Constitution aright. But not if...we conservatives tend too much to regard many key turns in US constitutional law as battles lost

If you understand that the Declaration of Independence frames the Constitution, this is not like the defeated South who had no constitutional basis for secession and was in the wrong. But that's another story. Here, we are in the right.

resurrect obsolete legal doctrines...what kind of constitution we are advocating for today

There's only one kind of Constitution. The one that is written and originally understood and intended. All it would take is the Court to begin basing their decisions on the Constitution, overturning unconstitutional decisions with sound constitutional-based reasoning, and if they exist, citing constitutionally-based decision(s) as precedent. All hell would brake loose. Good. All hell has already broken loose because of 100+ years of unconstitutional decisions and allowing SCOUS to make national law.

Reversing all of this is part of what it will take if we are to recover our Free Constitutional Republic. Impossible? Without God, yes. Should it be done? You bet. Worth the try? You bet again. Freedom is always worth the fight.

Read what I wrote.

It would take the Court to begin basing their decisions on the Constitution, overturning unconstitutional decisions with sound constitutional-based reasoning, and if they exist, citing constitutionally-based decision(s) as precedent.

Reinstating the Constitution and seating a sound Court are part of what is necessary to restore our Free Constitution Republic which should be our primary political focus and goal for the next 20 to 30 years.

It has already started. With Trump, there is a good chance we may get the first solid conservative SCOTUS majority since FDR.

Without the miraculous Divine Providence of God’s help, America would never have been birthed. Resorting our Free Constitutional Republic will be no less miraculous in freeing this country from the Enemy Within.

Faith and an intellectually or politically coherent program or strategy are not mutually exclusive. They were not at our Founding, and they are not now. BOTH are needed and as it was at our founding, faith being probably the most important component of the two.

Do you really think that overturning Social Security and Medicare, making sweatshops and Jim Crow possible again, and otherwise weakening the protections of the Bill of Rights would be a political winner? Or that these views can be sold on the basis that they are more in keeping with a document written centuries ago by white men in periwigs who met in secret, wrote with quill pens, and thought slavery tolerable?

Moreover, a comprehensive and abrupt reversal of more two centuries of judicial precedents to arrive at a true, original view of the Constitution is simply not going to happen and is not desirable. Many of the changes in constitutional doctrine that conservative scholars are critical of in the abstract are popular and election-winning. In many instances, Supreme Court decisions were the trigger for essential changes in American life like the end of segregation.

There is no way around the need to learn and engage with the body of American constitutional law as it is and to fight for changes, case by case, based on good reason from where we are, not where we would prefer to be. Originalism, or textualism as Justice Scalia took late to calling it, is a powerful critique of modern constitutional law but should not be fashioned into an engine of destruction.

The better approach is to appoint reliable conservative judges who will gradually undo the worst doctrines and decisions. In other words, the better approach is to win political power and then exercise it in a conservative and responsible manner.

overturning Social Security and Medicare, making sweatshops and Jim Crow possible again, and otherwise weakening the protections of the Bill of Rights

Who said anything about that?

a comprehensive and abrupt reversal of more two centuries of judicial precedents

It's about a century of reversing unconstitutional decisions that overturned about a century of constitutional precedents.

appoint reliable conservative judges who will gradually undo the worst doctrines and decisions. In other words, the better approach is to win political power and then exercise it in a conservative and responsible manner.

Substitute "reliable conservative" (nobody knows what a "conservative" is) with "judges faithful to the Constitution as written and originally understood and intended" and I think you're on the right track.

Under a strict originalist view of the Constitution, there is no federal authority for Social Security and Medicare and federal wage and hour laws, and the separate but equal rule of Plessy v. Ferguson could be reinstated with the federal courts unable to interfere. So also would direct federal court intervention to protect the Bill of Rights be on untenable ground.

In the judicial sphere, conservatism favors gradual, organic change in law and opposes abrupt discontinuities even when pure logic is in favor. In that manner, conservatism places great weight on the reliance interests and settled expectations that are part of the working capital of a coherent legal system. Otherwise, when there is constant change in the law, the courts, the bar, and the public at large must suffer a high degree of doubt as to what the law is.

Justice Scalia used to say that after about 75 years, even unwise changes in constitutional doctrine that have not been overturned become so settled and accepted that they are usually best deferred to instead of being reversed. One can argue Scalia's point on the specifics, but the principle itself is a sound expression of conservative thinking.

there is no federal authority for Social Security and Medicare and federal wage and hour laws, and the separate but equal rule of Plessy v. Ferguson could be reinstated with the federal courts unable to interfere. So also would direct federal court intervention to protect the Bill of Rights be on untenable ground

True enough.

conservatism favors

Don't care what "conservatism favors".

Part of recovering our Free Constitutional republic would include the gradual phase-out of unconstitutional Social Security and Medicare (if the people want it then they should have their state set it up for them, ramping up as the feds ramp down. These are states' issues).

Unconstitutional federal wage and hour laws should be immediately abolished.

All federal interference with state law based on incorporating the 14A should be immediately overturned. That would mean reinstating the Bible and prayer in schools, reinstating state anti-abortions laws, and reinstating state marriage laws,among other things.

Dancing in the streets.

I don't agree with Scalia, who seems like many, to ignore the fact that it would be about reversing 75 years of unconstitutional decisions that overturned about a century of constitutional precedents that were previously settled and accepted - by everyone except the Fabian Socialist Left.

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