Second Amerndment Takes A Hit

[Frank Ettin]

Nonetheless, the interpretation of the Constitution and how it applied was a matter for dispute since the ink was barely dry. Marbury v. Madison appears to be the first major constitutional litigation, and it was decided in 1803. McCulloch v. Maryland was decided 10 years later, in 1813.

So notwithstanding your belief that the Founders left no doubt about what they meant in the Constitution, it appears that questions about what they meant wound up in court even while many of them at least were still alive.

I think a fairer suggestion might be that some people tried to twist what the document was supposed to mean to suit their own purposes. ...

Fairer? What hogwash. So anyone who disagrees with what you think the Founders meant is disingenuously "twisting" their meaning? Preposterous!

...The people that wrote it knew what they had written was supposed to mean. ...

Really now? It's fatuous to believe that even they all agreed on exactly what they meant and how the Constitution would apply.

The reality was that although fifty-five delegates attended the Constitutional Convention in 1786-87, only thirty-nine signed the proposed Constitution. Thirteen left early without signing, and three refused to sign. There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

...They probably also realized that there would those who would forget it as soon as it was convenient for them. That is pretty much the nature of politics.

Phooey! The nature of politics is that people often disagree, and when people live and work together adjustments, compromises and accommodations need to be worked out; and politics is one way such things are worked out.

Indeed, the Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Many were lawyers. A few were judges. Almost all were very well educated.

They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration.

They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being.

And since they had their share of disagreements among themselves, in the Constitution they assigned the judicial power of the United States to the federal courts.

 

[alsaqr]

A federal appeals court upheld a federal law; nothing new here. Most federal laws are upheld at the appeals court level.

 

[JSH1]

Well said Frank.

When someone tells me "The Founders said XYZ" I always ask "Which ones".

 

[barnbwt]

"John Roberts is looking more and more like the re-incarnation of Earl Warren or David Souter every year."
You mean Roger Taney, right? "I can prevent conflict by kicking the question over to the dominate political forces in the leguslature"

TCB

 

[JRH6856]

IMO, The Constitution, as written is a strongly ambiguous* document which created a form of government which, due to the separation of powers, perhaps most closely resembles a triangular shaped plate spinning on the point of a stick. Depending on conditions, one point often has more weight than the other two, causing the system to tip in its favor, but never permently, or even predominantly.

At first glance, weight seems to be on the side of the legislative branch but this was balanced by naming the President as the chief magistrate which imparts the power and authority to determine constitutionality of the acts of Congress and veto if they fail to pass muster.

But due to the authority given by the Constitution to the Court to decide all matters of law arising under the Constitution, John Marshall rightly determined that the authority to determine constitutionality was shared by the Supreme Court. He then went a step further and asserted that the Court had final authority. By doing this, he insured that the authority Constitutionaly assigned to both branches, passed through the Executive before coming to rest in the Judicial branch. The other two branches aquiesced and thus it became an accepted part of the structure.

As a result it might appears that the plate is rendered permanently out of balance, but this is not so. Per the Constitution, the Court is a court of appeal, not assertion. It can become involved in any questions only when asked to do so which means that even though the weight of final authority may rest in its corner, it is not free to swing that weight at will. In fact, it could be said that the appellate status of the Court actually places the weight in the hands of the People until such time as one or more of us hand it to the Courts to decide a question.

* The ambiguity is intentional. The constitution makes strong statements in describing the powers and authority of the government, but does not venture far into specifics in doing so.

Example: Sec VIII Clause 18 "Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

This is ambiguous as it does not specifically define or list the "Powers" it speaks of. Instead, it requires that the rest of the constitution be read and fully understood to know what the powers of government are. But the rest of the document is equally non specific, requiring a full understanding of the entire document in order to understand the meaning of any specific part and how it applies.

In this, it is very much like the Bible, and one can fall into serious error if part of either are read outside of the context of the whole and without a full understanding of the whole document.

 

[barnbwt]

The document is vague about what government can or is supposed to do, because the lawyers drafting it obviously knew they could not account for every potential. However, it is quite explicit in describing what the government may not do, which is actually the real purpose for the document. That the forbidden actions are themselves broad does not mean they are vague. It was understood that authorities will ultimately do what they want to do regardless, unless they are suitably constrained against abusive behavior. So the definition of what their purpose is only needs the vaguest definition, because it ultimately does not matter since it places no constraints on federal action.

To be honest, the one thing the document could not prevent (or the writers predict, apparently) is for the various branches to cede their authority to each other by refusing to wield it. Obviously, there are prohibitions against this behavior explicitly in the constitution, but think about it; the only way for ceded powers to return to the congress is if one of the other branches act in its defense. If the other two branches refuse to object to the transfer, it will remain, and your spinning plate metaphor rapidly comes out of balance. It was believed that each branch would furiously spar over each others' authority, but alas even Hobbes could not predict that a sufficiently comfortable society would fall prey to laziness before personal greed.

Congress has shown on innumerable occasions that it is not interested in looking after its edicts once made, leading to the modern age where practically every congressional decision delegates authority to another group for all but the broadest definition (usually the executive branch). At this point, the executive basically has enough tools delegated to him by congress that for all intents and purposes binding law can be written and implemented. Zero congressional by-in is required for rule-making related to everything from espionage (4th amendment violations) to civil rights (1st, 9th, & 10th amendment violations) to national security (3rd, 5th, 7th, & 8th amendment violations) and increasingly to gun control (2nd amendment) and economic/environmental areas (free market violations).

Looking at it on the whole, it should be no surprise that the expected bulwarks don't seem to be holding all that reliably these days.

"the Court is a court of appeal, not assertion. It can become involved in any questions only when asked to do so which means that even though the weight of final authority may rest in its corner, it is not free to swing that weight at will."
And yet we have numerous recent rulings based in arguments not presented, as well as glaring, long-standing legal conflicts that go unresolved...

"In this, it is very much like the Bible, and one can fall into serious error if part of either are read outside of the context of the whole and without a full understanding of the whole document."
But unlike the Bible, this document was definitely the product of man, and not only that, we have numerous contemporary interpretations from the writers before, during, and after its adoption. They may have disagreed on many points, but the fact remains that the powers adopted by the supreme court were not expressly written or even outlined in the document, yet they have become extraordinarily significant and precise over the years. Like the Bible, I submit that everything included in the Constitution was done so for a reason, and the omission of such an (apparently) crucial function to a healthy republic is both glaring and telling.

Luckily, it no longer matters what we the people outside the system think about its legality, anymore.

TCB

 

[JRH6856]

Good points, barnbwt.

The "spinning plate" is obviously tilted, just as a spinning gyroscope tilts due to influence from outside, yet even when tilted, it continues to spin and remains stable. (and since all analogies break down sooner or later, I'm not taking this one any farther).

To be honest, the one thing the document could not prevent (or the writers predict, apparently) is for the various branches to cede their authority to each other by refusing to wield it. Obviously, there are prohibitions against this behavior explicitly in the constitution, but think about it; the only way for ceded powers to return to the congress is if one of the other branches act in its defense. If the other two branches refuse to object to the transfer, it will remain, and your spinning plate metaphor rapidly comes out of balance. It was believed that each branch would furiously spar over each others' authority, but alas even Hobbes could not predict that a sufficiently comfortable society would fall prey to laziness before personal greed.

I'm not certain this was not anticipated (nor am I certain that it was) but I fear that an in depth discussion of the give and take between the branches might delve too deeply in to a discussion of politics for the mod's sensibilities. But major shifts occurred after the Civil War when the 14th Amendment placed much authority in the hands of the Courts, and during FDR's reign when much authority shifted to the Executive. Since government by bureaucracy was (and remains) a major goal of Progressives, they have strongly resisted all attempts to reverse the course. The fact that there are progressives in both major parties just makes it that much harder.

 

[barnbwt]

"since all analogies break down sooner or later"
Much like an off-balance gyroscope . I'll take the analogy further; unless energy is added to the system, a gyro will slow to the point stability is lost and it tumbles. An off balance system falters sooner, and generates a lot more heat before it fails.

"I'm not certain this was not anticipated"
Yeah, you're right. I think I meant it was unaccounted for by the writers, perhaps because there is no good way to prevent it. You can't lead a horse to water, nor can you make a weak people govern themselves nobly. Perhaps that is why Jefferson was such a proponent of agricultural industry (in line with the hard-working Protestant ethic in abundance in the colonies)

"A Republic, if you can keep it" --Franklin
"When we get piled upon one another in large cities, as in Europe, we shall become as corrupt as Europe." --Jefferson
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." --Adams
And there's others I've seen which I can't recall off hand. In fact, I seem to recall the prevalent belief that the republic was doomed to fail within a generation or two, among the writers at the time of independence.

I think even Plato had a read on the situation back in 350BC;
"If you can discover a better way of life than office-holding for your future rulers, a well-governed city becomes a possibility"

"major shifts occurred after the Civil War when the 14th Amendment placed much authority in the hands of the Courts"
It's funny; you can actually see how every subsequent amendment has had more and more unintended consequences beyond the fairly narrow scope driving their ratification, perhaps none so much as the 14th amendment. Even the 12th, which firmly entrenched winner-take-all for party elections to the executive branch (previously, the President and Vice were elected separately, which meant you needed two convincing leaders on your team to snag both positions). You'd think, that if Judicial Review were really a crucial pillar of our government as we are told, that legislation stating this arrangement would have been amended to the constitution early on. And yet, it wasn't until nearly two generations after the adoption the constitution that it first became an issue (plenty of time for congress & executive to start passing unconstitutional law, therefore plenty of time for the Courts to begin losing focus on their mission)

TCB

 

[Walkalong]

I hope this case goes to the Supreme Court.

Same here.

Let's try to stay on topic and not wander further into politics.

 

[JTHunter]

HankB said:

No problem - we have a GOP majority in the Senate to prevent left wing extremists from being confirmed.

Considering the backstabbing RINO's like Boehner and Kirk, DO we have a majority? I'm not so sure!

 

[Frank Ettin]

That's it. Folks were asked nicely not to try to turn this into a political discussion. Oh well.

And once again, the Legal Forum is a place to discuss, learn about, and try to understand what the law actually is and how it actually works.