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Topic: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench (Read 4132 times)

Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Quote from:    Wikipedia    http://tinyurl.com/57z8m   

[glow=blue,2,300]The Supreme Court [/glow]of the United States (first abbreviated as SCOTUS in 1879) was established pursuant to Article III of the United States Constitution in 1789 as the highest federal court in the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. In the legal system of the United States, the Supreme Court is the final interpreter of federal constitutional law, although it may only act within the context of a case in which it has jurisdiction........


Quote from:     Wikipedia   http://tinyurl.com/yfr2lz    

[glow=blue,2,300]Judicial Activism [/glow] describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers......





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[glow=blue,2,300]Some of the many Milestone Supreme Court Decisions [/glow]

1803 - Marbury v. Madison
This decision established the system of checks and balances and the power of the Supreme Court within the federal government.

1857 - Dred Scott v. Sandford
This decision established that slaves were not citizens of the United States and were not protected under the U.S. Constitution.

1954 - Brown v. Board of Education
This decision overturned Plessy v. Ferguson and granted equal protection under the law.

1964 - New York Times v. Sullivan
This decision upheld the First Amendment rights of freedom of speech and freedom of the press.

1966 - Miranda v. Arizona
The decision established the rights of suspects against self-incrimination.

1973 - Roe v. Wade
This decision the right to privacy extends to include a woman's right to choose pregnancy or abortion.

1974 - United States v. Nixon
This decision established that executive privilege is neither absolute nor unqualified.

2008 - District of Columbia v. Heller
The decision that The Second Amendment does protect the individual's right to bear arms.

2013 - United States v. Windsor
This decision ruled that the Defense of Marriage Act deprived legally married (under State Law) same-sex couples of their Fifth Amendment rights to equal protection under federal law.





[glow=blue,2,300]A Complete List of United States Supreme Court Cases & Decisions [/glow]



The Constitution of the United States of America, the [glow=red,2,300]'Law of the Land'[/glow] as it is affectionately known to the American People, has been heatedly debated since before it's inception in late 1780's to present date.

A further in-depth history & account of how the U.S. Constitution was crafted by The Founding Fathers,  & eventually ratified as 'The Law of the Land', including reference to all the 27 Amendments, can be found here

In this thread we have the grand opportunity, whether you are an American Citizen or not, to debate & argue past, present, & possibly future S.C.O.T.U.S. (Supreme Court of the United States) decisions to your hearts content.

As with most valid argument, whether pro or con, it is important that you back up your contentions with valid links to support your position(s).


The only special request I make of all debaters is that, whether or not you like the  U.S. or  it's Constitution, 
is that you please show respect for the historical aspects of America's most treasured & cherished document,
second only to the Declaration of Independence.



Have fun, & enjoy a most spirited debate!     

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #1 –
Quote from: SmileyFaze on
Judicial Activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers......

This has become a "boy who cried wolf" issue. Within the Wikipedia it's noted that:

Quote
Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with";[8] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like."


Often the court finds correctly according to constitutional law, but the losing side cries "judicial activism!" (In same-sex marriage cases I had to rolled my eyes and say "yes, the Bush-appointed conservative judge is a gay activist... " But the Left cries it as well over decisions against gun-control, but in reality the court's decision was in line with the constitution.

Original intent is an interesting question. It seems to assume all the signatories to the constitution had the same intent. For example, George Washington was Federalist until he died. Pierce Butler was a Federalist, but converted to the Democratic-Republican party. Did they really have the same intent and understanding of the document they signed? It would require reading of other papers authored by those men to really answer that question, would it not?

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #2 –
Quote from: Sanguinemoon on
Original intent is an interesting question. It seems to assume all the signatories to the constitution had the same intent. For example, George Washington was Federalist until he died. Pierce Butler was a Federalist, but converted to the Democratic-Republican party. Did they really have the same intent and understanding of the document they signed?


During those few moments while the signatures were penned to paper, all differences & arguments were swept aside, all petty gripes were deemed as unimportant, not as important as a united stand, for during those moments they were to be seen in total agreement as they signed in unison, establishing everyone a new nation -- unanimously -- without coercion or reserve. It's not as if they just walked in & signed without long discussion & deliberation. No, they knew that putting their signature on that paper was an extremely serious matter, & that it meant one thing.....that as worded, they agreed  .....  ergo their signature.

Quote from: Sanguinemoon on
......It would require reading of other papers authored by those men to really answer that question, would it not?


Not really, just glean the list of signatories, find his name, & know exactly what he meant by putting his name there, as the pen was pressed to paper, while the ink was set to dry.

Almost anybody can change their views from time to time in developing their positions, many do, but when the Constitution was signed, during those very solemn moments, they signed it together, & agreed in it's meaning unanimously.

If they changed their minds 10 minutes later, it means not a bit.

If they felt for,  & argued for other wordings in the days leading up to their signing, they wouldn't have signed if they didn't ultimately agree, so it means not a bit.

If you personally disagree with the meaning of the Constitution, & would prefer to read something else into the document, that's your prerogative, but your argument can only be seen for what it is, a matter of personal convenience -- a matter that can't be borne out in fact.

If you wish to change this sacred 225 year old document, restructure what it says, & what it means, then according to Article V, you must amend it, or overthrow the government that is sworn by oath to protect it.

Your choice.





Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #3 –
Trump says he will end birthright citizenship
Quote from: https://www.politico.com/news/2024/12/08/trump-end-birthright-citizenship-00193184
The 14th Amendment, which was ratified in 1868, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” A constitutional amendment approved by Congress requires ratification by three-fourths of the states.
Trump doesn't explain how he'd go about it,[1] but the evident fallback would be the Supreme Court's Dred Scott decision from 1857, which for the time being is superceded by the 14th Amendment.
Quote from: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
The decision is widely considered the worst in the Supreme Court's history, being widely denounced for its overt racism, judicial activism, poor legal reasoning, and crucial role in the start of the American Civil War four years later.
1 Obviously, because he doesn't know anything, including on this topic. In the interview he "weaves" into "I'm gonna focus on drill baby drill..."↵

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #4 –
Chief Justice John Roberts published the yearly report of SCOTUS. The indefensible contents of the report reveals that the status of SCOTUS is beyond repair.
Quote from: https://ballsandstrikes.org/scotus/supreme-court-end-of-year-report-john-roberts-2024/
Roberts’s report provides little insight into the actual problems the judiciary faces. It didn’t mention, for instance, the Senate Judiciary Committee’s investigation into the Court’s ethical challenges, which resulted in a nearly-hundred-page report published just days before Roberts’s own that found that the Court “allowed a culture of misconduct to metastasize into a full-blown crisis.” He did not bring up the Court’s dramatic and repeated interventions into the 2024 election to bolster Donald Trump’s presidential campaign and shield him from criminal liability. Nor did Roberts discuss the regular stream of revelations about the justices’ inappropriate financial and political relationships, or how those scandals have caused public confidence in the Court to plummet, cratering at about 40 percent in September 2021 before creeping up to 44 percent as of September 2024.

Instead, the report elucidates the chief justice’s priority: power. Roberts has led the Supreme Court in implementing an odious policy agenda without public support or accountability.

1. We should have our jobs forever
2. We don’t have to listen to you
3. You do have to listen to us

Another concurring opinion https://abovethelaw.com/2025/01/john-roberts-annual-report-2024/

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #5 –
Jack Smith's report on DC election interference is out. The permission for the release was battled out with judge Aileen Cannon, even though she has no jurisdiction over it (the election interference case was never before her, nor has she anything else to do with DC). Probably she eventually allowed its release precisely because she had no jurisdiction over it and could not prevent it.

Quote from: https://www.newsweek.com/read-jack-smith-donald-trump-jan-6-document-full-election-interference-2014418
U.S. District Judge Aileen Cannon had barred the DOJ from releasing a final investigative report or any drafts after requests by the President-elect and his allies.

However, on Monday she allowed Garland to release the first volume of former Smith's report on his investigation in the 2020 election.
Judge Aileen Cannon has also issued decisions about the Mar-a-Lago documents case, namely for Jack Smith to not publish his report on that (a different report, since a different case). However, the same judge tossed out the case earlier, so she really has no jurisdiction over that one either anymore. It must be her making power moves for Trump to like, so she could be appointed to SCOTUS, the best place to legislate from the bench.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #6 –
Quote from: ersi on
the first volume of former Smith's report on his investigation in the 2020 election.
How did the "Gun for Hire" Smith become "former"? :) (Oh, how much will I be castigated for suggesting that the writer is not a native-English speaker? :) ) Smith was and is a mediocre -at best- lawyer. (But good enough for Geneva, eh!? :) ) Garland misread the current statute, and Smith was unconstitutionally appointed; but what would Garland care about the constitution? :) )

To put it plainly: Jack Smith's "cases" weren't brought to trial because a trial was never the point. It was election interference — that failed. Oops! Now, he's fled the scene, leaving behind "accusations"...
I've no doubt he'll be re-hired by the Hague! :)
进行 ...
"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
 (iBook G4 - Panther | Mac mini i5 - El Capitan)

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #7 –
Quote from: OakdaleFTL on
Quote from: ersi on
the first volume of former Smith's report on his investigation in the 2020 election.
How did the "Gun for Hire" Smith become "former"? :) (Oh, how much will I be castigated for suggesting that the writer is not a native-English speaker? :) )

Is Martha McHardy of Newsweek not a native-English speaker?

You misattributed the quote, doofus, whereas I quoted precisely from Newsweek. My text editor kicks your text editor's butt. You are castigating yourself with your ineptitude.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #8 –
Quote from: ersi on
Is Martha McHardy of Newsweek not a native-English speaker?
Good question! But perhaps it's just her copy editor that is? :)

Since you chose to take it as a personal attack, I'll accommodate you: The reader has lapses...[1] His quote should have read:

Quote
However, on Monday she allowed Garland to release the first volume of former (sic) Smith's report on his investigation in the 2020 election.

Quote from: ersi on
The permission for the release was battled out with judge Aileen Cannon, even though she has no jurisdiction over it (the election interference case was never before her, nor has she anything else to do with DC).
One wonders what Judge Chutkin thought of it... :)
1 Indeed, he sometimes seems to be frothing at the mouth! :) ↵
进行 ...
"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
 (iBook G4 - Panther | Mac mini i5 - El Capitan)

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #9 –
With sweeping actions, Trump tests US constitutional order
Quote from: https://www.reuters.com/world/us/with-sweeping-actions-trump-tests-us-constitutional-order-2025-03-21/
The nation's founders set up a system of government in the Constitution with three co-equal branches, a design intended to have the executive, legislative and judicial branches serve as a check on the power of the others.
In reality, the actual checks of balances (and appearance of democracy) have the shape of two-party system in USA. All branches of government are permeated by hyperpartisanship. Everybody speaks of "conservative" and "liberal" judges, media outlets, universities, even businesses and brands — everything is judged on partisan basis.

Trump calls judges "liberal" or "Obama-appointed" whenever he does not like the rulings. And calls for their impeachment. He shows open contempt and scorn for other branches of the government or institutions in general. There is even a theory for it:
Quote from: https://www.reuters.com/world/us/with-sweeping-actions-trump-tests-us-constitutional-order-2025-03-21/
UNITARY EXECUTIVE THEORY

Trump is also aiming to weaken checks within the executive branch, according to legal experts, including by firing the inspectors general and the heads of various agencies designed by Congress to have a measure of independence from a president's direct control.
Some of Trump's broad assertions of power are in line with what is called the "unitary executive" theory. This conservative legal view sees the president as possessing vast authority over the executive branch - even when Congress has sought to impose limits such as protecting the heads of independent agencies from firing without cause.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #10 –
Quote from: ersi on
Trump calls judges "liberal" or "Obama-appointed" whenever he does not like the rulings.
I sometimes get the impression that those who call themselves Republican most enthusiastically attack and tear down the legacies of GHW Bush and GW Bush (and even Reagan for that matter).

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #11 –
As Allan Lichtman, the elections predictor, says, "Republicans have no principle and Democrats have no spine." It only remains to realise how deep the Republican lack of principle is, namely absolutely bottomless. The fact that they tout some given principle while acting against the same principle every step of the way, e.g. "fair elections" requiring voter IDs to prevent illegal immigrants from voting while no illegal immigrant ever has cast a single vote and every single election fraudster is a Republican (both crying foul and directly tampering with election results is evidently in their party culture), this barely scratches the surface of what it means to be a Republican.

Besides, the Republican lack of principle applies historically all the way back at least to "I'm not a crook" Nixon who plainly was a crook. It should also be obvious enough that the legacies of Reagan and Bushes are net negative in every aspect you choose to examine.
 

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #12 –
Republican talk show host Jesse Kelly says to "Ignore the Supreme Court".
Quote from: https://x.com/JesseKellyDC/status/1913665268527571056
Ignore the Supreme Court. Arrest anyone who tries to enforce this. Dissolve the Supreme Court entirely if they push.

You can deport foreigners or you don’t have a country anymore. There are no good choices now.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #13 –
Heh, he even says "Dissolve the Supreme Court entirely if they push." Of course, lucky for the Supreme Court, they do not push. They only emit paperwork and when you ignore the paperwork, they may or may not emit some more.

Among conservative talkers it is nowadays mandatory to be overtly and double-down positively fascist or at least lie with a happy smile for the God-King. Gone are the good old Rush Limbaugh days when there was no God-King and it sufficed to be viciously anti-Democrat with no positive programme.

By the way, I had to look up who this Jesse Kelly dude was. My intake of post-turn-of-the-millennium American political commentary is apparently patchy. And I probably am not going to fix it, because the commentary has become worthless and the way to fix it is to stop having any more of it.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #15 –
Quote from: Frenzie on
Stephen Miller says anybody who isn't as corrupt as Alito or Thomas is part of a "rogue radical-left judiciary" that should be opposed.
Now it's gone from ignoring or opposing court orders to arresting judges in the courthouse.

FBI: Judge accused of helping man evade immigration agents is arrested
Quote from: https://apnews.com/article/immigration-judge-arrested-7997186bbca5730e70a25f2347e631f6
FBI Director Kash Patel announced on social media the arrest of Judge Hannah Dugan, who he said “intentionally misdirected” federal agents away from a man they were trying to take into custody at her courthouse.

“Thankfully our agents chased down the perp on foot and he’s been in custody since, but the Judge’s obstruction created increased danger to the public,” Patel wrote.

Court documents detailing the case against the judge were not immediately available, and the Justice Department didn’t immediately have a comment Friday.

Re: Constitutional Law, & the Courts - Original Intent v. Legislating from the Bench

Reply #16 –
These are not arguments on the constitutionality of birthright citizenship.

Cleverly, Trump administration is bringing a different question in front of SCOTUS: Lower courts should not issue nationwide injunctions (which they have on the question of constitutionality of birthright citizenship, an easy and obvious section of the constitution that Trump administration is violating).

https://www.youtube.com/watch?v=nzn0eQYeTSQ

Trump administration hates the constitution and some supreme justices go like, "Hmm, you may have a point. The president should indeed be able to issue random unconstitutional EOs and when people go to court to oppose it, the court should grant constitutionality only to those particular people." Under Trump administration, rights only apply to those who go to court for them and win, except you also have to be able to evade the ICE agents lurking around courthouses.