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I'm sorry but you are just making sh*t up and while usually it is best just to ignore such posts; this is too important to let stand unopposed. The Declaration

I'm sorry but you are just making sh*t up and while usually it is best just to ignore such posts; this is too important to let stand unopposed. The Declaration of Independence and the US Constitution are firmly founded and derive from natural law. How can you say the Constitution largely avoids moral concerns when slavery and its role was foundational to the document's very existence? If there had been no agreement regarding humans as property in the US Constitution there would have been no republic. Period. Revisionist nonsense is just revisionist nonsense. The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. An "unconstitutional law" is still the law of the land until it is duly repealed by Congress. The concept of judicial review does not even exist in the Constitution nor was it even debated by the founders. It was entirely a power grab in the aftermath of Marbury v Madison. Whether its establishment as a pro forma power was for the better of the country is debatable. The history of the SCOTUS is long and tangled. SCOTUS has zero power to enforce any of its decisions other than budgetary control of the federal courts. It is a political institution just like any other but with a unique set of tribal rules. It offers its opinions, and if it offers too many contrary to public opinion it becomes irrelevant to political life.

dctoedt 14y ago
> I'm sorry but you are just making sht up* Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law. > The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison [0] was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it. EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's [1] school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school [2]. The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman [3]. > An "unconstitutional law" is still the law of the land until it is duly repealed by Congress. See above. NOTES: [0] http://en.wikipedia.org/wiki/Marbury_v._Madison http://en.wikipedia.org/wiki/Marbury_v._Madison [1] Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...." [2] http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html http://66070092.nhd.weebly.com/military-interference.html [3] http://en.wikipedia.org/wiki/Ex_parte_Merryman http://en.wikipedia.org/wiki/Ex_parte_Merryman
- shawn-butler 14y ago
  a) "Um, no", but times a thousand! b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear? The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense. As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy. See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law? Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs. The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution. SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.
  - tptacek 14y ago
deleted 14y ago
[deleted]
tptacek 14y ago
I don't understand the fundamental argument you are trying to make. On the one hand, you appeal to the Constitution as a document of natural law (it very much isn't, but let's stipulate that it is). Then you proceed to argue that judicial review was a usurpation by the Supreme Court, which has zero power and is apparently increasingly irrelevant. If you think there is a set of core moral values animating the country, but you don't believe the Supreme Court has the power to enforce those values, to whom are you appealing? Clearly not Congress; it's Congress that passed the law that has you yelling at me.
- shawn-butler 14y ago
  Maybe because I am making no fundamental argument? I have no interest in a dialog. You made several egregious errors. They were pointed out. First that the US Constitution is not a moral document. Second, that SCOTUS is an "ultimate" arbiter. If you do not believe that the US Constitution and other founding documents were products of Enlightenment thinking and that natural law principles did not inform the debate then we really have nothing more to discuss. You are simply choosing to remain ignorant of the history. I do not care to grant your stipulation. There is nothing to stipulate to. You are just flatly wrong. I'm assuming you are one of those "living" document types and want to talk about what the meaning of the word "is" is. My tank full of patience for that ran out long ago. Your reply makes no sense. Also your "yelling" comment is rhetorical grandstanding. I have barely raised an eyebrow, let alone my voice. I also notice you failed completely to address the fundamental point regarding morality and the US Constitution with respect to slavery. Do you believe it was rational thought and not moral judgments that led to the conclusion that slaves were 3/5 citizens for apportionment?
  - tptacek 14y ago
    Then, as you say, we have nothing more to discuss, and I'm spared the need to respond to your non-sequitur question.
    - shawn-butler 14y ago
      Non-sequitur? Perhaps the meaning of that phrase eludes you? You wrote: "The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights." I replied that slavery is essentially a moral question and is at the very heart of the Constitution. It would not have been ratified without it. You ignored this statement entirely in your vacuous reply. Did that help you to see how it follows?

dctoedt 14y ago

> I'm sorry but you are just making sht up* Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law. > The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison [0] was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it. EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's [1] school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school [2]. The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman [3]. > An "unconstitutional law" is still the law of the land until it is duly repealed by Congress. See above. NOTES: [0] http://en.wikipedia.org/wiki/Marbury_v._Madison http://en.wikipedia.org/wiki/Marbury_v._Madison [1] Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...." [2] http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html http://66070092.nhd.weebly.com/military-interference.html [3] http://en.wikipedia.org/wiki/Ex_parte_Merryman http://en.wikipedia.org/wiki/Ex_parte_Merryman

shawn-butler 14y ago
a) "Um, no", but times a thousand! b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear? The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense. As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy. See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law? Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs. The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution. SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.
- tptacek 14y ago

deleted 14y ago

[deleted]

tptacek 14y ago

I don't understand the fundamental argument you are trying to make. On the one hand, you appeal to the Constitution as a document of natural law (it very much isn't, but let's stipulate that it is). Then you proceed to argue that judicial review was a usurpation by the Supreme Court, which has zero power and is apparently increasingly irrelevant. If you think there is a set of core moral values animating the country, but you don't believe the Supreme Court has the power to enforce those values, to whom are you appealing? Clearly not Congress; it's Congress that passed the law that has you yelling at me.

shawn-butler 14y ago
Maybe because I am making no fundamental argument? I have no interest in a dialog. You made several egregious errors. They were pointed out. First that the US Constitution is not a moral document. Second, that SCOTUS is an "ultimate" arbiter. If you do not believe that the US Constitution and other founding documents were products of Enlightenment thinking and that natural law principles did not inform the debate then we really have nothing more to discuss. You are simply choosing to remain ignorant of the history. I do not care to grant your stipulation. There is nothing to stipulate to. You are just flatly wrong. I'm assuming you are one of those "living" document types and want to talk about what the meaning of the word "is" is. My tank full of patience for that ran out long ago. Your reply makes no sense. Also your "yelling" comment is rhetorical grandstanding. I have barely raised an eyebrow, let alone my voice. I also notice you failed completely to address the fundamental point regarding morality and the US Constitution with respect to slavery. Do you believe it was rational thought and not moral judgments that led to the conclusion that slaves were 3/5 citizens for apportionment?
- tptacek 14y ago
  Then, as you say, we have nothing more to discuss, and I'm spared the need to respond to your non-sequitur question.
  - shawn-butler 14y ago
    Non-sequitur? Perhaps the meaning of that phrase eludes you? You wrote: "The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights." I replied that slavery is essentially a moral question and is at the very heart of the Constitution. It would not have been ratified without it. You ignored this statement entirely in your vacuous reply. Did that help you to see how it follows?