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U.S. Constitution
See other U.S. Constitution Articles

Title: Supreme Court Offers Opinion, Doesn’t Make Law
Source: [None]
URL Source: [None]
Published: Jul 30, 2016
Author: Dave Brenner
Post Date: 2016-07-30 12:08:53 by tpaine
Keywords: None
Views: 1405
Comments: 20

Supreme Court Offers Opinion, Doesn’t Make Law

Whenever state laws are overturned by the Supreme Court, such decisions are often cited as repudiation against any sort of argument for their legitimacy. While case law is regularly debated, the court’s constitutional power to make such reversals is rarely questioned. Courtly precedents are usually referenced in support of such actions rather than a constitutional basis.

But the power to offer opinion does not equal the power to make law. While today, most believe that Supreme Court justices carry an aura of infallibility in doing so, that perception was not always so clairvoyant.

The Constitution grants very little power to the federal judiciary for a reason. Since British history was rife with treacherous kings who packed the royal courts with those who would innately endorse their aims, the founders embraced the separation of powers doctrine espoused by Charles de Montesquieu for a reason. The judges serve for life to separate them from kingly and pragmatic interests, not for assurances of power.

The Supreme Court was constructed to adjudicate law for specific cases, mostly disputes among states or situations in which the United States is a party. The high court was assuredly never meant to override law or overturn state law, and even the proponents of judicial review in the ratification conventions never explained this power in relation to overturning state law. How can I assert this with certainty? Because the Constitution’s biggest proponents assured us of this. The proof lies in the states, where the Constitution was defended against some of the most compelling attacks by the Brutus Writings, Patrick Henry, and other powerful voices of opposition.

These questions should have been answered when John Marshall refuted the apprehensions of George Mason during the Virginia Ratifying Convention. Mason strongly condemned the Constitution because he believed it would allow the nationalists to exploit and annihilate the state courts. Mason said, “There is no limitation. It goes to every thing. The inferior Courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please.”[1] Mason argued that the scope of the cases that would be taken up by the federal judiciary would be virtually unlimited, noting “When we consider the nature of these Courts, we must conclude, that their effect and operation will be utterly to destroy the state governments. The next day, John Marshall disputed these sentiments, noting “The objection, which was made by the Honorable member who was first up yesterday (Mason) has been so fully refuted, that it is not worth while to notice it.”[2]

It all began with Fletcher v. Peck (1810), where the high court reversed a state law for the first time. This was done under malevolent and confounding circumstances. When Georgia enacted a state law which reversed land sales implicating members of Congress in bribery, the reversal was declared unconstitutional by the John Marshall Court. Essentially, the result was the Supreme Court getting away with passing a law which read: “Georgia’s ability to revoke corruptible land sales is hereby annulled.”

In Wickard v. Filburn (1942), the Supreme Court made a decision as law by explaining that growing a surplus of wheat was a violation of the commerce clause, and thus the court was allowed to regulate individual production. These decisions were not exceptions; they were the manifestation of the court’s majestically conjured lawmaking power. It is much more common now for the court to reverse state law, while federal law is often strongly endorsed. The court’s statement in this case was clear: “Whatever property rights Ohio’s Constitution affirms, it is our right to cancel them.”

Many of the founders espoused the view that the Supreme Court was not the sole arbitrator of all constitutional issues, and could not hold such power to make such irrevocable decisions. Thomas Jefferson famously made a political career of opposing the federal judiciary in rendering opinions as law. Realizing that the Supreme Court did not take up any of the appeals of those convicted under the Sedition Act, he drafted the Kentucky Resolution of 1798. Considering the development of the Marshall Court, he wrote that a general judiciary with the power to make such decisions as law was “dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”[3] Jefferson wisely recognized the truth: “The Constitution has erected no such single tribunal” to operate in such a manner. [4]

The founders and framers delegated most powers of the general government to the legislature. It was done so intentionally, as one house was closely aligned with the interests of the people (The House of Representatives), while the other was representative of the sovereignty of the states (The Senate). When the courts act to create de-facto law rather than by rendering of opinion, they violate the intentional separation of powers doctrine used to diffuse powers not only between separate branches of the general government, but also the paradigm of the general government and the states. When a group of nine judges attempt to make law for a populace of 310 million and settle constitutional questions for all time, they are acting against the interests of the compact of the Constitution. Such a situation is demonstrative of an oligarchy, not a republic.

[1] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume III, Edited by Jonathan Elliot (Washington: Taylor & Maury, 1861), 476.

[2] Ibid, 502.

[3] Thomas Jefferson to William Jarvis, September 28, 1820, in The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private, Edited by Henry Augustine Washington (New York: Derby & Jackson, 1859), 178.

[4] Ibid

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#1. To: tpaine (#0)

If Americans were willing to change their minds about where power resides, and were willing to allow Executive overrides of the Supreme Court's decisions,. it would be a different thing.

But thus far, the public is not even close to doing so.

Vicomte13  posted on  2016-07-30   19:30:40 ET  Reply   Trace   Private Reply  


#2. To: Vicomte13 (#1) (Edited)

The
USSC
redefinition
decree
of
same
sex
marriage
does
that

equal
rights
means
equal
results
now

redistribute
everything
now

some
animals
are
... more
equal
than
others
now

some
none

Make
America
free
great
again

love
boris

ps

Alabama
Supreme
Court
Justice
Roy
Moore
was
suspended
for
shuffling
his
papers
too
slowly

If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !

BorisY  posted on  2016-07-30   19:54:25 ET  Reply   Trace   Private Reply  


#3. To: Vicomte13 (#1) (Edited)

"Many of the founders espoused the view that the Supreme Court was not the sole arbitrator of all constitutional issues, and could not hold such power to make such irrevocable decisions."

The Constitution itself makes that clear in the supremacy clause, and in the 10th Amendment.

If Americans were willing to change their minds about where power resides, and were willing to allow Executive overrides of the Supreme Court's decisions,. it would be a different thing. --- But thus far, the public is not even close to doing so. --- Vic

Their is no confusion on where the power to override SCOTUS decisions/opinions resides. --- The people, the States, Congress, and the President, -- ALL share such powers.

Many progressive types, of course, disagree.

tpaine  posted on  2016-07-30   21:02:44 ET  Reply   Trace   Private Reply  


#4. To: tpaine (#3)

Their is no confusion on where the power to override SCOTUS decisions/opinions resides. --- The people, the States, Congress, and the President, -- ALL share such powers.

You may not be confused about it.

The country at large doesn't think it's confused either.

Unfortunately, your view and their view as to where the power resides is different.

Vicomte13  posted on  2016-07-30   22:28:37 ET  Reply   Trace   Private Reply  


#5. To: Vicomte13, Y'ALL (#4)

There is no confusion on where the power to override SCOTUS decisions/opinions resides. --- The people, the States, Congress, and the President, -- ALL share such powers.

You may not be confused about it. ---- The country at large doesn't think it's confused either. --- Unfortunately, your view and their view as to where the power resides is different.

Yep, as I commented, progressives and I disagree about the constitution. --- But the Constitution has not changed, and eventually, the progressive/socialistic view of it will be defeated.

Your view is being defeated by a humanistic type of capitalism, Vic, -- learn to enjoy it.

tpaine  posted on  2016-07-31   13:16:14 ET  Reply   Trace   Private Reply  


#6. To: tpaine (#5)

Some of my views have already won. We are a more tolerant society now, in the sexual and racial sense. And that is a huge victory for my beliefs. We have become intolerant of the intolerants, and we punish racial intolerance now. That's good too.

So on this matter - of racial tolerance and leaving people alone in the bedroom - my view has already conquered and will not be reversed.

When it comes to the social safety net, I believe in Social Security, Universal Health Insurance, Universal Public Education, Unemployment Insurance, Living Minimum Wage laws, OHSA health and safety laws, fair employment standards, and environmental regulations. What we have is not perfect. But it is a long, long way from the "zero" that those who stand opposed to me have. So, on the big question of the overall social state, once again, what I believe has already largely triumphed. The people who want to roll all of that back do not have a hope in hell of ever achieving it. So, once again, my view isn't "being defeated" at all. It won in the 1930s, and has extended its lead since then.

My big issues are foreign policy (I oppose endless foreign wars, I favor trade treaties that are not so open and free that the American industrial base is destroyed. On this point I have been in the minority for a long time, but if Trump wins, I win on this.

I dislike the rise of the police state, and I prefer to see relaxation, or at least non-enforcement, of rules and laws that pertain to private personal conduct. Large scale economic conduct, by contrast: banks, investment houses and large employers, most certainly need to be regulated. Right now the other side is in the ascendant, but things are swinging my way.

I favor across-the-board even-handed taxation of everyone on the same basis. We're never going to get there and I know it.

And that leaves abortion. I think it's murder, and I'd like to see the Supreme Court strike it down. If Trump wins, the Justices he names might do that. If not, with time, the Hispanicization of America may eventually achieve it. If not that either, then I may lose on this one until the end of the world, and only win on it in the next life.

I'm not depressed - what I believe in has been winning for the better part of a century, and continues to advance, more or less. The things I think are wrong are specific, and neither party is going to give me the win on those.

You're in a much less happy situation. Pretty much nothing you believe in is the law of the land as currently practiced, and there are no substantial numbers of people ready to move that way.

I don't attack you for your beliefs, but I am a realist. I know where I have won, where I am winning, and where I am not going to win any time soon, if ever. I sense in your writing a certain unrealism. You believe in what you believe in just as strongly as I do, for the reasons you state. But what you believe in isn't advancing anywhere. It has lost massive amounts of ground, and continues to. But you write a bit like that fellow from Maine who really, truly believes that Maine minutemen are about to rebel, defeat the federal army, and take Maine out of the Union.

It's the unrealism that strikes me in so much of what you write, and what others write here. It's as if people are trying to cast spells, by stating a mantra over and over, of things that are not so, that they can be conjured into being by sheer force of will.

That's a difference between me and many hear. I am nothing if not completely realistic and pragmatic.

The other difference is that I am as tolerant as I believe people should be. I encounter a great number of views that are really opposed to mine, but this does not make me angry, and it doesn't force me to jump all over the head of somebody and ridicule him for believing what he believes. I suppose that part of that is that I am coming from the viewpoint of somebody whose beliefs are 75% in the ascendant, so I can be magnanimous. You're coming from a position of about 1% happy - we've got the written Constitution you want - so you're struggling against a great number of barriers and people, each of whom outrages you because of their indifference to what you perceive as "the Truth".

Would the country be better off going to your model of the Constitution? I don't think so. It would be the end of Social Security, Unemployment benefits, minimum wage, in some places gay rights and minority rights (they would not be respected, and there would be no remedy of federal force to change that).

Vicomte13  posted on  2016-07-31   13:52:10 ET  Reply   Trace   Private Reply  


#7. To: Vicomte13 (#6)

As I commented, progressives and I disagree about the constitution. --- But the Constitution has not changed, and eventually, the progressive/socialistic view of it will be defeated.

Your view is being defeated by a humanistic type of capitalism, Vic, -- learn to enjoy it.

I am coming from the viewpoint of somebody whose beliefs are 75% in the ascendant, so I can be magnanimous. You're coming from a position of about 1% happy - we've got the written Constitution you want - so you're struggling against a great number of barriers and people, each of whom outrages you because of their indifference to what you perceive as "the Truth".

You're about to find out in the election that your 75 percent progressive majority is imaginary. -- I doubt you true believers in socialism are less than 25 percent of the population.

Would the country be better off going to your model of the Constitution?
My model? --- I have no model, as our Constitution is a rather easily understood written document. You progressives see it as a model for big govt, and that's the problem.
I don't think so. It would be the end of Social Security, Unemployment benefits, minimum wage, in some places gay rights and minority rights (they would not be respected, and there would be no remedy of federal force to change that.
There you go again, hyping the social issues. This country is rich enough to support the unemployable, -- especially if capitalism is unleashed from the bureaucratic mess that socialism has made. We have a chance with Trump, to start getting out of the mess. Stand aside...

tpaine  posted on  2016-07-31   15:33:45 ET  Reply   Trace   Private Reply  


#8. To: tpaine (#7)

You're about to find out in the election that your 75 percent progressive majority is imaginary. -- I doubt you true believers in socialism are less than 25 percent of the population.

Walk down the street or through a shopping mall. Close to fifty percent of the children you see there are born out of wedlock. They want and need socialism. So do their mothers. How many of our people have not graduated from a serious high school and are unable to qualify to apply for or hold a job. They want and need socialism. Many college graduates are unable to find a job years after graduation How many people hold government or other jobs that are forms of socialism? This country is filled with incompetent people within an incompetent culture and system who are socialistically dependent. You are as full of shit as a Christmas goose and you spread it like Hillary Clinton.

This crap about, "This country is rich enough to support the unemployable" is the same crap I've been hearing from the radical left for 50 years. We have far too many people living in incompetence without prudence or moral dignity who expect to live off imposed redistribution of income from other people under Marxist Cloward and Piven theory, and assholes you selling it.

rlk  posted on  2016-07-31   16:43:36 ET  Reply   Trace   Private Reply  


#9. To: rlk (#8)

Many college graduates are unable to find a job years after graduation How many people hold government or other jobs that are forms of socialism? This country is filled with incompetent people within an incompetent culture and system who are socialistically dependent.

You are as full of socialistic shit as a Christmas goose and you've been duped by Hillary Clinton.

This crap about, "This country is rich enough to support the unemployable" is the same crap I've been hearing from the radical left for 50 years.

On the contrary, the socialists have been spewing that same 'incompetent' crap you just posted above.

You're a progressive, and you dont even know it.

tpaine  posted on  2016-07-31   17:47:09 ET  Reply   Trace   Private Reply  


#10. To: tpaine (#7)

We have a chance with Trump, to start getting out of the mess. Stand aside...

I support Trump.

Vicomte13  posted on  2016-07-31   19:43:41 ET  Reply   Trace   Private Reply  


#11. To: Vicomte13 (#10)

We have a chance with Trump, to start getting out of the mess. Stand aside...

I support Trump.

Then why this comment? --

I'm not depressed - what I believe in has been winning for the better part of a century, and continues to advance, more or less.

Socialism has been 'winning' in the USA for the last hundred years, granted. -- So pardon me for doubting your support for Trump, who wants to restore our republic.

The things I think are wrong are specific, and neither party is going to give me the win on those.

Yep, you and a lot of progressives think like that. -- You're fooling yourselves, but not us constitutionalists.

tpaine  posted on  2016-07-31   21:52:22 ET  Reply   Trace   Private Reply  


#12. To: tpaine (#9)

You're a progressive, and you dont even know it.

OK. Then give us all a five minute lesson on the basic position of Cloward/Piven theory and its etiology.

rlk  posted on  2016-08-01   0:56:32 ET  Reply   Trace   Private Reply  


#13. To: rlk (#12)

give us all a five minute lesson on the basic position of Cloward/Piven theory and its etiology.

Why in hell do you think I should know, or care, anything about your silly theory?

tpaine  posted on  2016-08-01   1:01:31 ET  Reply   Trace   Private Reply  


#14. To: tpaine (#13) (Edited)

give us all a five minute lesson on the basic position of Cloward/Piven theory and its etiology.

Why in hell do you think I should know, or care, anything about your silly theory?

It isn't my theory. Cloward and Piven, along with Alinsky have been the backbone of Marxist theorizing and strategy for 50 years.

rlk  posted on  2016-08-01   1:15:27 ET  Reply   Trace   Private Reply  


#15. To: rlk (#14)

So, -- is this supposed to prove you're a progressive, and you know it?

tpaine  posted on  2016-08-01   1:54:45 ET  Reply   Trace   Private Reply  


#16. To: tpaine (#11)

Socialism has been ...

Yep, you and a lot of progressives...

I'm not a socialist. Nor am I a progressive as that word is used nowadays.

If the word labels are important windmills for you to tilt at, tilt away.

Vicomte13  posted on  2016-08-01   8:13:44 ET  Reply   Trace   Private Reply  


#17. To: tpaine (#15)

So, -- is this supposed to prove you're a progressive, and you know it?

If shit were brains, you couldn't fart.

rlk  posted on  2016-08-01   15:44:00 ET  Reply   Trace   Private Reply  


#18. To: rlk (#17) (Edited)

So, -- is this supposed to prove you're a progressive, and you know it?

If shit were brains, you couldn't fart.

Your brain is shit, and your words are farts.

tpaine  posted on  2016-08-01   16:01:28 ET  Reply   Trace   Private Reply  


#19. To: tpaine (#18)

Your brain is shit, and your words are farts.

Great! I'm receiving a temper tantrum from a spoiled kid angry over his inbability to give me a five minute synopsis of Cloward and Piven related to the lunatic argument he brought up.

Communication terminated.

rlk  posted on  2016-08-01   18:42:37 ET  Reply   Trace   Private Reply  


#20. To: rlk (#19)

So, -- is this Cloward and Piven thing supposed to prove you're a progressive, and you know it?

If shit were brains, you couldn't fart.

Your brain is shit, and your words are farts.

Great! I'm receiving a temper tantrum from a spoiled kid angry over his inbability to give me a five minute synopsis of Cloward and Piven related to the lunatic argument he brought up.

How idiotic, - your initial foul mouth tantrum was turned in kind, -- and now you're back to the Cloward and Piven idiocy.

Communication terminated.

tpaine  posted on  2016-08-01   19:07:06 ET  Reply   Trace   Private Reply  


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