Mr. Choate, an important message from Justice Scalia....
http://www.jsonline.com/news/metro/mar01/scalia14031301a.asp Scalia on originalist constitutional philosophy, versus the "living document" approach, in reference to recent Choate-spawned questions and threads. <snip> But Scalia also insisted that only his approach - interpreting the Constitution based on the Framers' precise words and the meaning they intended at the time - can preserve the Constitution's guiding principles. "The Constitution is not an organism," the justice said, "it is a legal document." <snip> <snip>That "living Constitution" approach, Scalia observed, has led to U.S. Senate hearings in which candidates for federal judge or Supreme Court justice are grilled about which rights they believe are in the Constitution. Eventually, voters will choose and demand judges based not on their ability to interpret the Constitution but on the political positions they hold, he warned.<snip> Eventually???? Somebody toss out the link for the Ashcroft hearings.... -Aimee
On Wed, Mar 14, 2001 at 11:36:09AM -0600, Aimee Farr wrote:
Eventually, voters will choose and demand judges based not on their ability to interpret the Constitution but on the political positions they hold, he warned.<snip>
Eventually???? Somebody toss out the link for the Ashcroft hearings....
But wasn't Scalia -- who made a reasonable point -- talking about the nomination of judges, not executive branch political appointees? -Declan
But wasn't Scalia -- who made a reasonable point -- talking about the nomination of judges, not executive branch political appointees?
-Declan
Yes. Indeed, it is the province of the Courts to interpret the Constitution (according to some, not including Mr. Choate), not executive branch political appointees. The very fact that we ask the executive branch these questions is pause for thought. I was trying to uncover any pragmatic distinction between a "political view" versus an opinion on the mechanics of constitutional interpretation. I raised more questions than I answered. -Aimee
On Wed, 14 Mar 2001, Aimee Farr wrote:
Yes. Indeed, it is the province of the Courts to interpret the Constitution (according to some, not including Mr. Choate),
Where? It says "...under this Constitution...". -------------------------------------------------------------------------- Article III. Section. 1. [SSZ: text deleted] Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. [SSZ: Text deleted]
political appointees. The very fact that we ask the executive branch these questions is pause for thought. I was trying to uncover any pragmatic distinction between a "political view" versus an opinion on the mechanics of constitutional interpretation. I raised more questions than I answered.
____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Discussion by Jim Choate, Declan, and Aimee -
But wasn't Scalia -- who made a reasonable point -- talking about the nomination of judges, not executive branch political appointees?
Yes. Indeed, it is the province of the Courts to interpret the Constitution (according to some, not including Mr. Choate), not executive branch political appointees. The very fact that we ask the executive branch these questions is pause for thought. I was trying to uncover any pragmatic distinction between a "political view" versus an opinion on the mechanics of constitutional interpretation. I raised more questions than I answered.
Marbury vs. Madison was an entertaining power grab by the Supremes, but while it may not have been explicitly planned by the bunch of politicians who wrote the messy compromise that's the Constitution, the Constitutional requirement that there be a hierarchy of courts with one Supreme Court means that something like it should happen. If you don't like the idea that the Supreme's job is interpreting the constitutionality of laws made by the legislature, their job at minimum involves deciding appeals in specific cases, and it's possible under Constutionally implied-but-unspecified conditions to appeal cases up the hierarchy. Some of those cases will involve questions where a law made by Congress or by a state (at least after the 14th amendment) conflicts with the majority of Supreme Court judges' opinions about what the Constitution (and amendments) directly states or with what they believe are fundamental civil rights which the 9th and 10th amendments confirm may exist even though they are not specifically enumerated. So even if, in a Choatian World, they couldn't say "We're the Supreme Arbiters Of The Meaning Of The Constitution", they can still say "We're the top of the judicial hierarchy, and we say that X is a bad law, and will rule in any case that is appealed to us that that the accused is not guilty and award legal costs to the accused." Under common law, throwing out cases of unjust laws is not only the job of the jury, it's also the job of the judge (though the judge also works for the King, and it may also be his job to enforce unjust laws.) Lower courts don't like getting overturned, so they'd generally stay in line given a ruling like that, and if not, the accused can spend the costs of the appeal and win. And since most courts generally follow precedents, once the Supremes have announced that X is a bad law, they'll generally stick to it for quite a while, or at least until the political climate changes and they decide some case doesn't quite fit the conditions that the precedent was set under, or weasel-word around it, or decide to do a rare break with tradition and issue a contradictory opinion.
On Fri, 30 Mar 2001, Bill Stewart wrote:
If you don't like the idea that the Supreme's job is interpreting the constitutionality of laws made by the legislature,
Ding ding, somebody got the difference. Though they still don't understand the implications (or which side I'm arguing). That's ok, it will come with time. I have zero, nada, nill, null, none, no problem with the SC interpreting the constitutionality of laws made by the legislature. This is however, different from interpreting the Constitution itself. The Constitution says "....under..." ____________________________________________________________________ Beware gentle knight, there is no greater monster than reason. Miguel de Cervantes The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
-- At 12:43 PM 3/30/2001 -0800, Bill Stewart wrote:
Marbury vs. Madison was an entertaining power grab by the Supremes, but while it may not have been explicitly planned by the bunch of politicians who wrote the messy compromise that's the Constitution, the Constitutional requirement that there be a hierarchy of courts with one Supreme Court means that something like it should happen.
Not "should happen", "would happen" To say that the constitution implicitly implies Marbury vs. Madison is true only in the way that for a girl to walk through a dark alley in a short short skirt implies consent for sex with random strangers in the alley. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG SmWWLGhDkaom2nZX4Vi9cCLQT0fxuw4s7BI+tfCq 4yULnjP1D6fY3fx8tINOn7HgtxGQV5/8BL9u6NASi
Good lord, man, that's amazing. You do realize that you just accurately summarized in 41 words the losing side of one of the most important constitutional debates in our nation's history? It's almost not quite short enough to tempt me to make a new .sig. Thank you -- that one goes in the digital scrapbook. -- Daniel James A. Donald wrote:
To say that the constitution implicitly implies Marbury vs. Madison is true only in the way that for a girl to walk through a dark alley in a short short skirt implies consent for sex with random strangers in the alley.
======================================================= The Law Office of Daniel J. Boone 326 Fourth Avenue, Suite B Juneau, Alaska 99801 (907) 723-9902 djb@gci.net ======================================================= "No man's life, liberty, or property is safe when the legislature is in session." -- Judge Gideon Tucker =======================================================
Thank you. At 08:32 AM 4/3/2001 -0800, you wrote:
Good lord, man, that's amazing. You do realize that you just accurately summarized in 41 words the losing side of one of the most important constitutional debates in our nation's history?
It's almost not quite short enough to tempt me to make a new .sig. Thank you -- that one goes in the digital scrapbook.
-- Daniel
James A. Donald wrote:
To say that the constitution implicitly implies Marbury vs. Madison is true only in the way that for a girl to walk through a dark alley in a short short skirt implies consent for sex with random strangers in the alley.
======================================================= The Law Office of Daniel J. Boone 326 Fourth Avenue, Suite B Juneau, Alaska 99801 (907) 723-9902 djb@gci.net ======================================================= "No man's life, liberty, or property is safe when the legislature is in session." -- Judge Gideon Tucker =======================================================
On Wed, 14 Mar 2001, Aimee Farr wrote:
Senate hearings in which candidates for federal judge or Supreme Court justice are grilled about which rights they believe are in the Constitution. Eventually, voters will choose and demand judges based not on their ability to interpret the Constitution but on the political positions they hold, he warned.<snip>
The Supreme Court isn't supposed to be interpreting the Constitution per se, they're supposed to be deciding if laws passed by Congress are constitutional. Two different animals. Last time I checked Scalia had no problem ignoring ...shall make no law... He certainly isn't bitching about the IR search violations of the 4th. I don't believe he was in the opposition to the 'assisted suicide' ruling which states that there is no right in the Constition in this regards. In direct contradiction to both the 9th and 10th. Scalia is a hypocrite. ____________________________________________________________________ If the law is based on precedence, why is the Constitution not the final precedence since it's the primary authority? The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Wed, Mar 14, 2001 at 05:17:27PM -0600, Jim Choate wrote:
On Wed, 14 Mar 2001, Aimee Farr wrote:
Senate hearings in which candidates for federal judge or Supreme Court justice are grilled about which rights they believe are in the Constitution. Eventually, voters will choose and demand judges based not on their ability to interpret the Constitution but on the political positions they hold, he warned.<snip>
The mail server of a subscriber to the lne CDR has been rejecting this thread: ----- Transcript of session follows ----- ... while talking to mailhost.itg.ti.com.:
DATA <<< 553 Message rejected due to possible virus infection 554 5.0.0 <username@ti.com>... Service unavailable
It hasn't rejected anything from cypherpunks in the past. The only content common to the three emails that it's rejected is included above. I wonder which word/phrase in there it thinks are the virus?
participants (9)
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Aimee Farr -
Bill Stewart -
Daniel J. Boone -
Declan McCullagh -
Eric Murray -
James A. Donald -
Jim Choate -
Jim Choate
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Jim Choate