What is Constitutional?

[IndyDave1776]

Given the flagrant partisan activism of the courts including and especially the post-FDR Supreme Court, it seems to me that there are multiple standards of "constitutional".

First, we have things that are what I will call "functionally constitutional", in other words, what the court has ruled and is done in practice.

Second, we have "truly constitutional", what the constitution actually says in unambiguous terms.

Third, we have any number of "custom constitutional" standards, which pretty much amounts to what anyone feels ought to be constitutional.

Let's explore.

 

[Tombs]

Well first and foremost, only the navy is allowed to remain standing unless we're in a period of active war.

 

[rooster]

Well first and foremost, only the navy is allowed to remain standing unless we're in a period of active war.

We’ve been at war for 20 years now with no end in sight so I don’t think we have to worry about this coming up anytime soon.

 

[Twangbanger]

Whatever the peeps in black robes say it is. It may be a ball, or it may be a strike, but it ain't a DAMN thing until THEY interpret it.

And it's not just because of the judges. Everybody else in society acts like that's how it is. The SC gets asked to hear something like 7,000 cases a year, IIRC.

We get the system we deserve. There's a lot of lawyers who need to eat.

 

[IndyDave1776]

There's a lot of lawyers who need to eat.

They can learn to code.

 

[BugI02]

We get the system we deserve. There's a lot of lawyers who need to eat.

Then we need to encourage canabalism

 

[Cameramonkey]

Then we need to encourage canabalism

or cage fights. Kirk vs HM. Two men enter, one man leaves....


Wait, never mind. Still doesnt reduce the population fast enough.

 

[IndyDave1776]

or cage fights. Kirk vs HM. Two men enter, one man leaves....


Wait, never mind. Still doesnt reduce the population fast enough.

200 men enter, one man leaves?

 

[Usmccookie]

We’ve been at war for 20 years now with no end in sight so I don’t think we have to worry about this coming up anytime soon.

"military conflict"

 

[Cameramonkey]

200 men enter, one man leaves?

Getting closer. LOL

 

[defaultdotxbe]

"military conflict"

I think that's another example of "custom constitutional"

 

[KLB]

And it's not just because of the judges. Everybody else in society acts like that's how it is. The SC gets asked to hear something like 7,000 cases a year, IIRC.

This is the area I have seen mentioned where a larger USSC could be useful. Have them work like the Circuit courts where the judges hear cases in smaller groups most of the time.

The issue would be getting that larger group in some kind of reasonable way

 

[AtTheMurph]

Well first and foremost, only the navy is allowed to remain standing unless we're in a period of active war.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

As long as they only appropriate money for the army for two years at a time it's ok. The thought back then was that the people would be so enraged by the waste of funding a standing army that Congress could never do it. That was before we had a nation of people fearful of all manner of boogie men and that we needed to be kept safe by a standing army.

That sort of thinking was never considered by the people in 1780s (unless you were Federal Farmer and wrote about it in your third letter)

 

[IndyDave1776]

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

As long as they only appropriate money for the army for two years at a time it's ok. The thought back then was that the people would be so enraged by the waste of funding a standing army that Congress could never do it. That was before we had a nation of people fearful of all manner of boogie men and that we needed to be kept safe by a standing army.

That sort of thinking was never considered by the people in 1780s (unless you were Federal Farmer and wrote about it in your third letter)

Also significant is that at the time tariffs were the federal government's primary source of funding. They couldn't just keep shaking the people down for more money and couldn't spend what they couldn't afford.

 

[chipbennett]

Given the flagrant partisan activism of the courts including and especially the post-FDR Supreme Court, it seems to me that there are multiple standards of "constitutional".

First, we have things that are what I will call "functionally constitutional", in other words, what the court has ruled and is done in practice.

Second, we have "truly constitutional", what the constitution actually says in unambiguous terms.

Third, we have any number of "custom constitutional" standards, which pretty much amounts to what anyone feels ought to be constitutional.

Let's explore.

Thanks to Marbury v Madison, the actual text of the Constitution is largely irrelevant now. The Judiciary assigned itself the role and authority for "judicial review", and then created out of whole cloth a three-tier scrutiny test that essentially gives the Judiciary the ability to ignore or contradict anything at all in the Constitution.

 

[IndyDave1776]

Thanks to Marbury v Madison, the actual text of the Constitution is largely irrelevant now. The Judiciary assigned itself the role and authority for "judicial review", and then created out of whole cloth a three-tier scrutiny test that essentially gives the Judiciary the ability to ignore or contradict anything at all in the Constitution.

My understanding is that Marbury v. Madison simply introduced the assertion of judicial review in terms of holding a law null and void if it contradicted the Constitution.

 

[chipbennett]

My understanding is that Marbury v. Madison simply introduced the assertion of judicial review in terms of holding a law null and void if it contradicted the Constitution.

Marbury v Madison was the justification and basis for all form of judicial review, including subsequent doctrine of levels of scrutiny (strict, intermediate, rational basis) used to determine that what would otherwise constitute an unconstitutional law is, in fact, constitutional. Without Marbury v Madison, there would have been no US v Carolene Products Co (and its famous Footnote 4).

 

[HoughMade]

Thanks to Marbury v Madison, the actual text of the Constitution is largely irrelevant now. The Judiciary assigned itself the role and authority for "judicial review", and then created out of whole cloth a three-tier scrutiny test that essentially gives the Judiciary the ability to ignore or contradict anything at all in the Constitution.

Well, it's more or less relevant based upon the judicial philosophy of the judges...which is not ideal, but utterly predictable.

 

[IndyDave1776]

Marbury v Madison was the justification and basis for all form of judicial review, including subsequent doctrine of levels of scrutiny (strict, intermediate, rational basis) used to determine that what would otherwise constitute an unconstitutional law is, in fact, constitutional. Without Marbury v Madison, there would have been no US v Carolene Products Co (and its famous Footnote 4).

The other side of the coin is that the court could not effectively operate or serve in the role of checks and balances without judicial review. Without judicial review, Heller necessarily would have been "We know the law is a flagrant violation of the Second Amendment, but it is was it is. You're SOL."

 

[chipbennett]

The other side of the coin is that the court could not effectively operate or serve in the role of checks and balances without judicial review. Without judicial review, Heller necessarily would have been "We know the law is a flagrant violation of the Second Amendment, but it is was it is. You're SOL."

That's not necessarily the case. The problem with judicial review as implemented is (at least) two-fold:

1. The power the court gave itself to "interpret" the constitution rather than merely apply black-letter law.
2. The inherent nature of any government entity to push the limits of any power or authority granted or assumed.