Panorama: Poor America [BBC - 12/2/2012]

[dgs49]

Jimmy, thanks for taking the time to explain yourself.

But you gloss over the most important point. The two sentences you quote DO NOT in any way grant to the Supreme Court the power to determine what is constitutional and what is not. All they do is (1) make the USSC the top FEDERAL court, and (2) give the Supreme Court the ultimate authority to decide cases brought under the Constitution and Federal laws (etc).

There is nothing in the Constitution that gives the USSC the power to overturn an act of Congress or the Executive. This power was assumed by the Court itself, and has been accepted by the other two branches, but is not in the Constitution.

But to give the USSC the same sort of presumptive power as the King (who cannot break the law because he is the law) is simply unwarranted. They can and do render rulings that are unconstitutional, among which were the creation of the so-called, "right of privacy," approval of the various New Deal laws, and the striking down of numerous state laws concerning offensive speech and personal conduct.

And because those rulings were unconstitutional, they are always subject to further review and to being overturned.

Provided the next President believes in the Constitution and nominates justices who believe in the rule of law.

[dgs49]

On the Galileo thing, posting stuff you've cribbed from the Internet doesn't prove it to be true, but only proves that there are other people out there who agree with you. Note in the following excerpt, Galileo was NOT excommunicated for his scientific position, but rather for insulting the Pope (formerly his friend) and couching his argument as a theological one. NOTE ALSO, at the time the Protestants believe the Bible literally, and Galileo would have been treated even more harshly for his writings had he been in what is now Germany, for example. So much for the Prods sniggering at the RC for excommunicating him.

Read on.

"...The next chapter in Galileo's inquisition didn't come about until 1632, and this was the result of an unfortunate chain of events. It all began in 1623 when a fellow astronomer, and friend of Galileo (Cardinal Barberini), was elected Pope Urban VIII. Though a geocentrist himself, he opposed the admonition of Galileo in 1616 and personally encouraged Galileo to return to the subject and write a treatise defending his heliocentric findings. Pope Urban VIII hoped to rehabilitate Galileo's reputation in the academic field, and give him the opportunity of scientific vindication. The pontiff personally asked Galileo to give arguments for and against heliocentrism in the book, and to be careful not to advocate heliocentrism as an absolute truth or theological fact. (In other words, he asked Galileo to stick to the realm of scientific theory and not cross the lines again into theology by pushing heliocentricity as absolute truth.) He also requested that his own views of geocentrism be included in Galileo's book."

"Unfortunately, only the latter of those requests was fulfilled by Galileo, and the way in which he did it became the central reason behind Galileo's second inquisition. The book, entitled "Dialogue Concerning the Two Chief World Systems" was a literary masterpiece for it's time. It was published in 1632. In it, Galileo structured the text as a debate between a heliocentrist and a geocentrist. The latter he named Simplicius (meaning "simpleton"), and casted him as a fool who frequently trapped himself by his own arguments. Most historians agree that Galileo did not do this out of malice. He was also an entertaining author who dazzled his readers with his literary wit and style. It is quite probable that Galileo was trying to write a book that would keep his readers entertained while he simultaneously educated them. But this method, combined with the fact that he pushed heliocentrism as absolute truth again, became Galileo's undoing. The pope (Galileo's friend) was a geocentrist, and the irreverent writing style of the book made him look like an idiot. This came at a time when the Catholic Church was still reeling from the Protestant Reformation. It is unknown if the pope ever read the book, and in all probability his advisers discouraged it. The pope's defenders immediately went into action, and once Galileo was caught in that political machine, the poor fellow never stood a chance. He was tried on suspicion of heresy. His book was banned, and Galileo was found guilty and ordered to be imprisoned. It is suspected that the pope was the one responsible for having his sentence commuted to house arrest. He remained under house arrest (in his own villa) for the remainder of his life. This may seem harsh to us living in the 21st century, but keep in mind that with a heresy verdict on his head, Galileo's life was in danger. He could have been captured and killed by any number of princes and lords who viewed heresy tantamount to treason. Had he fled to Protestant territories, his fate would have been the same, since Protestants viewed heliocentricity as heresy too. House arrest was by far the most humane and charitable way of protecting a man with a price on his head. As long as he was under the guard of a Church deputy, his safety could be assured, and the Vatican could plausibly claim he was being punished for his "crime."

"Contrary to popular urban legend, the Galileo inquisition was a political one, not a scientific one. Galileo was tried and condemned for what was perceived to be an attack on the pope, along with an attempt to preach scientific theory as theological truth. The Catholic Church never officially condemned Copernicus' theory of heliocentricity..."

[Grim Reaper]

It's cute how you talk about posting stuff cribbed from the internet and then proceed to do the exact same thing.

[Lord Jim]

Grim, I've noticed that's the second time you've referred to Dave as cute...

Are you flirting?

[Andrew D]

It's cute how you talk about posting stuff cribbed from the internet and then proceed to do the exact same thing.

But dgs49 is honest about it. He says "in the following excerpt," so everyone knows that he is cribbing something.

In contrast, Little Jimmy claims that he "began to develop a theory" when, in fact, he had not begun to develop, nor did he ever develop, anything. He regurgitated a theory which is so commonplace as to be trite. But he claimed it as his own.

dgs49 is, in my estimation, flat-ass wrong about a great many things. Sometimes persistently so.

And I have not hesitated to say so. (Will he ever come to grips with the reality of the Tenth Amendment?)

But I do not recall having seen him attempt to take credit for others' ideas. I do not recall having seen him attempt to pass himself off as something which he is not.

He is, in my estimation, many things, some of which are undesirable. But as far as I recall, liar is not one of them.

And that puts him well above Little Jimmy.

[Lord Jim]

give the Supreme Court the ultimate authority to decide cases brought under the Constitution and Federal laws (etc).

There is nothing in the Constitution that gives the USSC the power to overturn an act of Congress or the Executive.

It seems to me Dave, that you are making a distinction there, with very little, (if any) practical difference...

Let me pose a hypothetical:

let's say Congress passes a law; The You Cannot Praise Your Mother In Public Act...

I get myself a megaphone, stand out on a public street corner, and proclaim, "My mother was a saint"; I am duly arrested, charged, tried and convicted of violating the YCPYMIPA...

I assume you would agree that my attorney could argue on appeal that my conviction should be thrown out on the grounds that it violates my Constitutional right to freedom of speech, since you agree that:

"the Supreme Court the ultimate authority to decide cases brought under the Constitution and Federal laws"

Are you saying that the SC could throw out my conviction on those grounds, when they heard the appeal of my case (that the law I was convicted under violated my Constitutional protections) but that they couldn't hold that the law itself was Unconstitutional?

If that's the distinction you're making, it seems like an odd one...

[Sue U]

There actually was some considerable debate initiallly over how far the judicial power would extend, and how it would be exercised in constitutional matters, but that was cleared up in Marbury v. Madison (1803).

[Lord Jim]

Marbury v. Madison (1803).

That was clearly a case that was decided unconstitutionally Sue...

It's a shame there weren't a majority judges on the Court at that time who believed in the Constitution...

[Sue U]

And with Jefferson in the Presidency, Madison as Secretary of State and John Marshall as Chief Justice, these guys clearly had no idea what the Founders intended in the Constitution.

[Lord Jim]

And with Jefferson in the Presidency, Madison as Secretary of State and John Marshall as Chief Justice, these guys clearly had no idea what the Founders intended in the Constitution.

They might have gotten it right, if only they'd had Ron Paul to advise them...

[Gob]

It's only a piece of paper!

[Crackpot]

Shows what you know it's a piece of parchment.

[Rick]

Gob I thought ya'll didn't have a Constitution?

http://australianpolitics.com/constitution-aus/text

[Gob]

Ah, but when I'm bagging your constitution, I'm British.

[dales]

It's only a piece of paper!

Well in that case my good man, send all your $AU, your deed to your property, your automobile titles, and stocks or bonds to me ASAP!

I'll be more than happy to take them off your hands.

[dales]

Shows what you know it's a piece of parchment.

I've actually seen it IRL!

It's behind glass and all but forgotten.

[Andrew D]

And there is Federalist No. 78, authored by the notorious leftist Alexander Hamilton:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Their duty.

Not some arrogated privilege.

Their job.

What we appointed them to do.

Their duty.

[Lord Jim]

On the issue of "follow the Constitution" I stand by what I said back in October:

Again, follow the Constitution

Lib1, I can't begin to tell you how tired I am of hearing that phrase....

It is enormously disingenuous, since what the person using it really means, (left or right) is:

"Follow what I say the Constitution means"

That is what the phrase "follow the Constitution" has to mean, because much like the Bible, the Constitution, what it requires, and what it means, is open to multiple interpretation. (The Founding Fathers of course realized this; that's why we have a Supreme Court)

The phrase "follow the Constitution" has become nothing but a cynical rhetorical device by which the one using it seeks to imbue what is only their opinion, (or their opinion and the opinion of others who hold the same opinion) with an almost Canonical level of indisputable authority...

"Do what I say you should do, and you are following the Constitution"

"Do not do what I say you should do, and you are not following the Constitution"

That is the real meaning of that phrase....

And most recently it has been the tool of radical Randians who seek to delegitimize every bit of social legislation enacted since 1932 and enshrine Herbert Spencer's Social Darwinism as the law of the land....

Every time I hear that sanctimonious self-righteous phrase come out of the mouth of Ron Paul, it's like finger nails on a chalk board. That wing-nut seems to think that "following the Constitution" requires that we allow people to pile up dead in the streets like cord wood, in the manner of some medieval village....

Thank God that the vast majority of Americans; Republican, Independent, or Democrat do not agree with this radical version of what "following the Constitution" means.

I want to make one further point...

While this "follow the Constitution" sophistry is currently all the rage with the Radical Randians, (When Ron Paul is being interviewed, he chants the mantra "follow the Constitution" in response to damn near every question he is asked...I think if I ran into him in an office building and asked, "Dr. Paul could you tell me where the Mens Room is?" he'd say "follow the Constitution") this "Constitution Waving" is by no means the exclusive province of The Right....

The lefties play that game too...

I first became fed up with our old buddy Steve when he kept insisting that my support for The Patriot Act meant that I had "no respect for the Constitution"....

No, I just had no respect for his interpretation of it....

[Andrew D]

He is, on the whole, correct.

I said so then:

Lord Jim's observations on the "follow the Constitution" subject are, on the whole, correct.

I say so again now.

He is, on the whole, correct.

[rubato]

Ah, but when I'm bagging your constitution, I'm British.

So you've only had the right to vote since after WW I. Up to then your masters told you what to think.

You're new at it.

yrs,
rubato