Who Determines Constitutionality?

[22Luke36]

In another thread we were having a productive discussion about constitutionality when it was locked for talking about wanting to follow the proven method of establishing freedom from tyranny that our forefathers directed us to when they established our great nation. They don't like the fact that our freedom was obtained through revolution, that history does repeat itself, that blood is the true cost of freedom, and the only way to get that freedom back is if we are willing to pay what it costs to regain it.

That said,

Who determines what the constitution says?

The individual, the people at large? SCOTUS, the court? Who?

The constitution was written to limit government power. That's the only reason that it exists.

My pet peeve here is as follows.

Many people think SCOTUS is there to interpret the constitution. Wrong. SCOTUS is part of the .gov, their paychecks are drawn off tax dollars and the members are citizens. Traitors often, but citizens none the less. If SCOTUS makes an "interpretation" of the constitution, it has overstepped its bounds regardless of what the subject matter may be, as each justice swore an oath to guess what, uphold the constitution, not to interpret what it says. Any justice who ever has, has become treasonous in making the interpretation instead of being bound by it.


Constitution is written in English, I don't need someone to tell me what it means when I read something like "shall not be infringed". Pretty freaking clear to me what that said. I can own and carry any small arm anywhere I choose, any time I choose, and in any method I choose to carry it.


As it is now, nothing is constitutional until the SCOTUS decides to get off it's ... and hear the case, then pass a ruling on whether it is constitutional or not. That's pretty F-ed up.

 

[sudden valley gunner]

“...government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself.” Thomas Jefferson

 

[22Luke36]

Within established jurisprudence, SCOTUS determines constitutionality.

\

They are bound as the rest of us are, or they are not. You can't have it both ways.

 

[22Luke36]

Are you saying that the constitution is there to limit us?

 

[Citizen]

Within established jurisprudence, SCOTUS determines constitutionality.

Outside established jurisprudence all rules are off, including constitutional justice.

We have yet to see the unintended consequences of the rescission of Senate Rule (5). Read the background to and then read The Poverty of Historicism, historicism being the fallacy that history is some sort of syllogism; because event A happened and event B happened (premises) then historically (syllogistic argument) event C must happen (conclusion).

I think the problem lies in who did the establishing.

Its not in the constitution. The government established it (after ratification.)

The idea that the very entity the constitution was designed to restrain is then also the sole and final referree of itself is absurd.

Thus, while it seems logical on the surface, the established argument actually sits on smoke that camoflages the absence of a foundation.

 

[davidmcbeth]

“...government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself.” Thomas Jefferson

I was trained and ordered while in the service, in performance of my duty to defend the constitution, to come to my own conclusions and act upon them to defend the constitution.

 

[eye95]

If the question of constitutionality is posed to the Court, it is reasonable that they decide it. That is not to say that they are the only arbiters of constitutionality, they are just the most practical.

If someone is convicted under a law he believes to be unconstitutional, it is natural that he seeks to have the matter addressed by the courts.

It is also reasonable that a State determine a federal law to be unconstitutional and prohibit its enforcement within its borders.

It is also reasonable that a sheriff refuse to enforce (or to allow to be enforced) a law that he finds unconstitutional.

Anyone who is charged with upholding the Constitution will naturally be passing on constitutionality issues. However, there will be disagreements and difficulties in making these calls. The institution with the best track record of being able to make a call and garner enough agreement to make it stick is the courts.


Sent from my iPad using Tapatalk.

<o>

 

[Primus]

If the question of constitutionality is posed to the Court, it is reasonable that they decide it. That is not to say that they are the only arbiters of constitutionality, they are just the most practical.

If someone is convicted under a law he believes to be unconstitutional, it is natural that he seeks to have the matter addressed by the courts.

It is also reasonable that a State determine a federal law to be unconstitutional and prohibit its enforcement within its borders.

It is also reasonable that a sheriff refuse to enforce (or to allow to be enforced) a law that he finds unconstitutional.

Anyone who is charged with upholding the Constitution will naturally be passing on constitutionality issues. However, there will be disagreements and difficulties in making these calls. The institution with the best track record of being able to make a call and garner enough agreement to make it stick is the courts.


Sent from my iPad using Tapatalk.

<o>

Well said. +1

Sent from my XT907 using Tapatalk

 

[sudden valley gunner]

If the question of constitutionality is posed to the Court, it is reasonable that they decide it. That is not to say that they are the only arbiters of constitutionality, they are just the most practical.

If someone is convicted under a law he believes to be unconstitutional, it is natural that he seeks to have the matter addressed by the courts.

It is also reasonable that a State determine a federal law to be unconstitutional and prohibit its enforcement within its borders.

It is also reasonable that a sheriff refuse to enforce (or to allow to be enforced) a law that he finds unconstitutional.

Anyone who is charged with upholding the Constitution will naturally be passing on constitutionality issues. However, there will be disagreements and difficulties in making these calls. The institution with the best track record of being able to make a call and garner enough agreement to make it stick is the courts.


Sent from my iPad using Tapatalk.

<o>

The courts have utterly failed at protecting the limitations granted in the constitution and have in fact granted congress and the government an open door for doing almost anything they like as long as they word it right.

 

[22Luke36]

Even easier if you are a muslim activist socialistic president, all you need then is a pen.

 

[davidmcbeth]

If the question of constitutionality is posed to the Court, it is reasonable that they decide it. That is not to say that they are the only arbiters of constitutionality, they are just the most practical.

If someone is convicted under a law he believes to be unconstitutional, it is natural that he seeks to have the matter addressed by the courts.

It is also reasonable that a State determine a federal law to be unconstitutional and prohibit its enforcement within its borders.

It is also reasonable that a sheriff refuse to enforce (or to allow to be enforced) a law that he finds unconstitutional.

Anyone who is charged with upholding the Constitution will naturally be passing on constitutionality issues. However, there will be disagreements and difficulties in making these calls. The institution with the best track record of being able to make a call and garner enough agreement to make it stick is the courts.


Sent from my iPad using Tapatalk.

<o>

Well, that leads to the question: why should I be bound to a law or court opinion that happened before I was even born?

 

[eye95]

Well, that leads to the question: why should I be bound to a law or court opinion that happened before I was even born?

I don't care what you think on the matter. I will never discuss with you on topic. You are not worth my time. There are others here who are.

 

[Citizen]

If the question of constitutionality is posed to the Court, it is reasonable that they decide it. That is not to say that they are the only arbiters of constitutionality, they are just the most practical.

If someone is convicted under a law he believes to be unconstitutional, it is natural that he seeks to have the matter addressed by the courts.

It is also reasonable that a State determine a federal law to be unconstitutional and prohibit its enforcement within its borders.

It is also reasonable that a sheriff refuse to enforce (or to allow to be enforced) a law that he finds unconstitutional.

Anyone who is charged with upholding the Constitution will naturally be passing on constitutionality issues. However, there will be disagreements and difficulties in making these calls. The institution with the best track record of being able to make a call and garner enough agreement to make it stick is the courts.


Sent from my iPad using Tapatalk.

<o>

I agree with this post. +1

I'm hoping that by practicality, Eye95 is referring to something along the lines of (contrast) it would be impractical to have the state legislatures decide the constitutionality of every case that raised a constitutional question. Although I often disagree with him, I do know that he's rarely inconsistent, so I'm guessing he means something along those lines rather than, say, the historical context where the sum of all decisions is a net reduction in liberty. Since that is most assuredly impractical, I can't imagine he's trying to say that.

 

[eye95]

By "practical," I mean in a manner that is generally (not perfectly) accepted by the States and the People, the entities that created the federal government and the SC.

 

[stealthyeliminator]

Anyone can try to determine what's constitutional, and anyone can get it wrong.

Legally, it seems to me that the Supreme Court effectually makes that decision.

Rightfully, I was going to say I suppose the people should be the ones to make that determination. Actually though, I think that whoever would make the right determination is rightful in making that determination. Whoever would make the wrong determination would be wrong to make that determination. The constitution is supposed to be an enumeration or incarnation of certain principles. If someone misinterprets the constitution - meaning, they interpret in a way that is contradictory to the principles upon which it was founded - they are always wrong and incorrect to do so.

 

[22Luke36]

If the courts, especially a supreme court make the decision of constitutionality, (judges are elected politicians now), then the decision can stay for decades. Much much longer if the robed politicians dont want to "hear" a case because it violates their personal beliefs.

You don't think that the forefathers saw this coming? If not, you're being inconsistent with the facts. All of our foundational documents were written with tyranny fresh in mind, some of the bodies weren't even cold yet. Why would they (without words or writing) leave the interpretation of the constitution up to a body that was electable for life? What closer thing to a king exists than a lifetime appointment to a federal judge.

The constitution was written to limit government, SCOTUS included. Any judge that has ever made a ruling contrary to the original wording or intent of the constitution has broken his/her oath, is guilty of treason, and should be dealt with as traditionally appropriate for a traitor.

 

[77zach]

As mentioned elsewhere, a juror may determine if a law is just, or not. Good information today on the rights and proper functions of the jury system.

http://www.lewrockwell.com/2013/12/steve-silverman/jury-nullification-is-the-way/

Looks like the FBI has tried to intimidate nullifiers in the past.

 

[Citizen]

Well, that leads to the question: why should I be bound to a law or court opinion that happened before I was even born?

You bring up an important point.

Thomas Jefferson discussed something strikingly similar in a letter to James Madison dated Sept. 6, 1789.

A few excerpts:

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government..."

"What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals..."

"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation..."

http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html

 

[OC for ME]

Thus the "need" for the federalists to place a mechanism in the Constitution so that it may be changed for/by the living, and not the dead, or the yet to be born.

BS.....personal opinion.....JN is good, unfortunately judges really don't like it, it intrudes on their turf.

Rights are not predicate on the living, the dead don't care, and the living will never know. But, it is the living that can sweep away a right if they meet the stringent requirements of the Constitution.

 

[eye95]

Thus the "need" for the federalists to place a mechanism in the Constitution so that it may be changed for/by the living, and not the dead, or the yet to be born...

True. Not having a mechanism for having the structure of society to continue despite the constant change in personnel would be silly and self-defeating. Children inherit the system of their parents and have the responsibility, once adults, fully responsible and fully righted, to change it within the structure provided, change it via rebellion as a result of WITCOHE, or vote with their feet to another society or to a place where they essentially absent themselves from society altogether.

Continuing to enjoy the fruits of society, but somehow deny it by saying, "I don't consent," is hypocritical and silly.

We have at least one poster who seems to have chosen the "absent" option, yet he still partakes of the fruits of society somehow. He is still posting here.


Sent from my iPad using Tapatalk.

<o>