State Sovereignty or Due Process?

Paschendale said:

No one has to determine them. We have every single possible right save for those that there is a constitutionally sound reason to deny us. All of this blanket anti federal government nonsense has no basis in history or law, and would result in a substantial curtailment of our individual liberty. It's very strange to see people stand up and yell about their freedom to be less free under an authoritarian state government that cannot be checked.

Why do you WANT to have fewer rights? Or is it just that you want everyone else not to have any rights that you personally don't tend to use?

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Paschendale said:

That's largely because judicial review was never really usurping power. It was an idea put forth in the Federalist Papers. It was not spelled out as such (I actually will argue that it is), but it was clearly an intent of those who wrote the constitution. And I argue that it is spelled out in article 3. Article 3 says that the judicial power extends to all cases, and says nothing about limiting the relief available to a petitioner. All cases includes the ones where the petitioner is arguing that the law in question violates the constitution.

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But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."

—Thomas Jefferson to William Johnson, 1823. ME 15:451

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Paschendale said:

Generally, people who argue that the court shouldn't be able to overrule the legislature like this only do so when the judiciary is ruling against what they want. It's almost always a purely selfish argument. And it's usually very poorly thought out, ultimately opening the path for lawmakers to violate the constitution however they like, and the only real way to check that being violence. For example...



Okay... how?

Note that the example he chooses is guns. The one he cares about is the violent remedy. Also, "congress shall make no law" is from the first amendment, not the second, and yet nobody really argues that the law shouldn't be able to punish someone for yelling fire in a crowded theatre and causing a panic and getting people hurt. No one argues that there should be no remedy against slander or libel. It is very obvious that congress shall make some laws abridging the freedom of speech, but that the bar is set very high in determining which ones can be made.

I think that deep down, people who makes these kinds of arguments are definitely acting very selfishly, are clearly very ignorant, and are either incredibly naive or are basically anarchists like Henrin.

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clownboy said:

Let's start with that last comment. That is precisely the issue. The PEOPLE are solely in charge of the necessary maintenance of the US Constitution. The founders were quite vocal about this and the necessity of regular maintenance. We should be amending the constitution every generation. As it is, the court took the power to do it, and have used that power where the people have rarely used theirs.

As to the rest, yes, you ARE supposed to "bemoan terrible judicial tyranny". How the heck do you think we ought to feel about judicial tyranny? The problem with you arguments is that you inject all sorts of emotionalism, I suppose as a way to distract from the arguments you know you cannot rebut.

Yes, they have been restrained in their use of extra-constitutional power. This restraint has not always been self-restraint. But they use this power when they have no recourse in constitution. So many of the cases they have accepted over history have offered them the direct reading of the constitution to rule from, so that is NOT restraint, but in the nature of the cases they CHOOSE to accept.

To say they don't move with the social flow in place of constitution is to ignore history. Otherwise there would never be an overturn of precedent without there first being a change to the constitution. And in fact there have been many overturns of precedent.

The court has NOT brought far greater individual rights and protections. In fact thy have continually restricted the enumerated rights. Good example is the Second Amendment. What part of "Congress shall make NO law.." allows congress to make a law restricting gun ownership of anyone? Yes, I know it doesn't make sense for that to be unmoderated in a modern environment. Which brings us full circle. The PEOPLE should be maintaining their constitution. Not the court.

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CriticalThought said:

Which is more important?

Here is a hypothetical. A state democratically passes a silly law which hurts a select group of people. The law is challenged and works its way up and the Supreme Court has a tough decision. It recognizes the law is silly and arbitrarily infringes on the liberty of some citizens but it wants to respect the democratic process. Should SCOTUS toss out the law to ensure the right to due process for those individual citizens or should it leave the law intact and simply encourage the state to repeal the law even if it may be enforced for some time and continue to negatively affect some citizens?

I leave this vague because I do not think it really matters what the law is or who it affects or how, what I am interested in is exploring the philosophical conflict between state sovereignty and due process.

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CriticalThought said:

In case you were not aware, this is a philosophy thread. We are debating a particular philosophical concept. Please read the OP if you wish to participate in the discussion.

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