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Supreme Court as the Ultimate Arbiter?

Is the Supreme Court being the Ultimate Arbiter of Constituionality a Problem?

  • The Supreme Court is not the ultimate arbiter of constitutionality

    Votes: 5 17.9%

  • The supreme court is the ultimate arbiter and there are no problems with that

    Votes: 5 17.9%

  • The supreme court is the ultimate arbiter and there are problems but it is the best system possible

    Votes: 11 39.3%

  • the SCOTUS is the ultimate arbiter its a problem, but there are ways to improve (explain)

    Votes: 6 21.4%

  • Other/Don't Know

    Votes: 1 3.6%
  • Total voters
    28
Perotista said:
I have read in several books that during the Washington Presidency, he would only veto a piece of legislation if he thought it to be unconstitutional. So during our first presidency, it seems Washington was the one to decide what was and wasn’t constitutional. Congress of course could override his veto.

It seems the framers left the question of who decides what is and isn’t constitutional open or at least ambiguous. Then Chief Justice Marshall gave us judicial review. Probably with a nation and government the size of ours today, there probably isn’t any other way than to let the SCOTUS decide what is and isn’t constitutional. But the problem is so many justices on the SCOTUS rule or decide on their political views and agenda and not on the original intent of the framers. You are correct, a retirement here, a death there and many of the laws we now consider constitutional may not have been that at all.

But I can’t see each state deciding what is or isn’t constitutional, I also do not think I would feel comfortable with congress or the president making that decision either. So by the process of elimination, we end up with the SCOTUS. Personally, I wish they would go by original intent instead of twisting words around in the constitution to suit their own political philosophy. But I really see no other way.
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It seems pretty ambiguous to me on whether judicial review was intended, although I lean towards yes. Hamilton arguing for it and Yates arguing against it both seemed to believe it was in the new constitution.

I basically believe the same way that for all their flaws, the SCOTUS is probably our best option.
 
Anagram said:
It seems pretty ambiguous to me on whether judicial review was intended, although I lean towards yes. Hamilton arguing for it and Yates arguing against it both seemed to believe it was in the new constitution.

I basically believe the same way that for all their flaws, the SCOTUS is probably our best option.
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Call it the lesser of all evils.
 
Anagram said:
I'm concerned that would lead to even more incentive to pack the court with partisans rather than good justices.
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Yet that's exactly what happens, both parties try to pack the court with their own partisan appointees as they can and the justices in the Supreme Court, instead of ruling based on the Constitution, rule based on their own personal biases. The whole system has gone to hell.
 
Redress said:
Do you realize that multiple papers have been written analyzing the phrase "bear arms" in historical context and that the meaning might not be as clear cut as you think?
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Certainly there have been, from biased perspectives on both sides. Nobody is willing to just take the words in the Constitution as they were written, everyone has to cook the terminology so it appears to say what they want it to say.
 
The Supreme Court is comprised of fallible human beings who are just as subject to political bias as any other member of the government body. While they act as the "ultimate arbiter", they are only human.
 
Cephus said:
Yet that's exactly what happens, both parties try to pack the court with their own partisan appointees as they can and the justices in the Supreme Court, instead of ruling based on the Constitution, rule based on their own personal biases. The whole system has gone to hell.
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The reason it still works better than you'd think is because although appointed by a President, they aren't accountable to him once confirmed. I'm sure the President was gnashing his teeth when two liberal justices ruled that the states couldn't be forced to accept the Medicaid expansion.

He's also gotten nailed with a few 9-0 decisions against actions of his administration. I'd be pretty embarrassed, actually, if I was president and the entire Supreme Court thought I was acting illegally.
 
francois60 said:
The reason it still works better than you'd think is because although appointed by a President, they aren't accountable to him once confirmed. I'm sure the President was gnashing his teeth when two liberal justices ruled that the states couldn't be forced to accept the Medicaid expansion.

He's also gotten nailed with a few 9-0 decisions against actions of his administration. I'd be pretty embarrassed, actually, if I was president and the entire Supreme Court thought I was acting illegally.
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But he's still loading the court with people he thinks will agree with his position. Granted, it hasn't worked out that way all the time in the past, but most of the time, the people appointed by liberal presidents act liberally and the people appointed by neo-cons (recently) act neo-con. I really don't want anyone to act liberal or neo-con, I want them to do the job that they're appointed to do, which is entirely non-partisan.
 
Maybe we need a council of States to determine what is Constitutional. If 75% agree if something is Constitutional then it is. If 75% of States agree if it is not Constitutional than it isn't. If it is neither maybe a Constitutional Convention would have to be called or Congress requested to pass an amendment to the Constitution.
 
Cephus said:
But he's still loading the court with people he thinks will agree with his position. Granted, it hasn't worked out that way all the time in the past, but most of the time, the people appointed by liberal presidents act liberally and the people appointed by neo-cons (recently) act neo-con. I really don't want anyone to act liberal or neo-con, I want them to do the job that they're appointed to do, which is entirely non-partisan.
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Definitely. The last justice to act in a way opposite from the President who appointed him intended was David Souter. I was just pointing out that despite this, the system still works better than the elected branches deciding what is constitutional.
 
francois60 said:
Definitely. The last justice to act in a way opposite from the President who appointed him intended was David Souter. I was just pointing out that despite this, the system still works better than the elected branches deciding what is constitutional.
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Which doesn't change the fact that it still doesn't work as intended and can be improved.
 
Paschendale said:
If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional. The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress, and allow revisiting of older problems later down the line. That our court system, as a whole, is equipped to analyze whether or not a law is a valid is a great thing.
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This is pretty much my thought. Somebody has to be. The whole reason we have courts, let alone a Supreme Court, is because people are simply unable to police themselves.

Granted, Our SC isn't perfect by any stretch of the imagination. They are designed to be above politics, to not be a rubber stamp, to not make up things as they go along... yet they still do all of those on occasion. But, they also do the right thing for the right reasons quite often. They're human, too, and as long as humans are involved in anything, it will be imperfect.
 
The SCOTUS is the ultimate arbiter and there's no way around the fact that an ultimate arbiter is needed in some form. You cannot have two separate but equal bodies determining what law is and how it is applied, the Constitution is in itself law and likewise you cannot have two bodies being the ultimate decider on constitutional issues because who's would you go with? One has to outweigh the other. Also you'll always have an "ultimate" arbiter by default since its whatever is the highest court.

This country could not function without a SCOTUS being the ultimate authority on the Constitution, some suggest that the states could do it but there's two problems with that. 1) You can't have 50 different determinations on what the Constitution means, and 2) doing so would be putting the states above the Federal government since if the Feds do something the state doesn't like they can just say its unconstitutional and ignore it.

And I'm not even talking about controversial issues, I'm talking about things that clearly within the authority of the Federal government, specifically the Congress. In 1832 South Carolina attempted to nullify a federal law which regulated trade, something literally spelled out in the Constitution as a power of Congress. If the states can decide by themselves, not even as a group, what is and isn't constitutional than you might as well not even have a Federal government because it will be totally powerless.

Nullification Crisis - Wikipedia, the free encyclopedia
 
Wiseone said:
The SCOTUS is the ultimate arbiter and there's no way around the fact that an ultimate arbiter is needed in some form. You cannot have two separate but equal bodies determining what law is and how it is applied, the Constitution is in itself law and likewise you cannot have two bodies being the ultimate decider on constitutional issues because who's would you go with? One has to outweigh the other. Also you'll always have an "ultimate" arbiter by default since its whatever is the highest court.

This country could not function without a SCOTUS being the ultimate authority on the Constitution, some suggest that the states could do it but there's two problems with that. 1) You can't have 50 different determinations on what the Constitution means, and 2) doing so would be putting the states above the Federal government since if the Feds do something the state doesn't like they can just say its unconstitutional and ignore it.

And I'm not even talking about controversial issues, I'm talking about things that clearly within the authority of the Federal government, specifically the Congress. In 1832 South Carolina attempted to nullify a federal law which regulated trade, something literally spelled out in the Constitution as a power of Congress. If the states can decide by themselves, not even as a group, what is and isn't constitutional than you might as well not even have a Federal government because it will be totally powerless.

Nullification Crisis - Wikipedia, the free encyclopedia
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radcen said:
This is pretty much my thought. Somebody has to be. The whole reason we have courts, let alone a Supreme Court, is because people are simply unable to police themselves.

Granted, Our SC isn't perfect by any stretch of the imagination. They are designed to be above politics, to not be a rubber stamp, to not make up things as they go along... yet they still do all of those on occasion. But, they also do the right thing for the right reasons quite often. They're human, too, and as long as humans are involved in anything, it will be imperfect.
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Both of you make good arguments and that's pretty much where I stand. I still wonder if there are any improvements that can be made to our system though, even though I believe the SCOTUS is pretty much our best option. Maybe term limits or changing the way our justices are appointed, although I see problems with both of those.
 
I know some people like to say and its often taught in schools that the SCOTUS grabbed the power of judicial review in Marburry vs. Madison, but frankly I think that's wrong since I believe the Constitution quite clearly gives the SCOTUS that power.

So article 3 which defines the judicial branch says

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. . . . The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . . In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
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And the Suprmacy Clause says

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. . . . [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
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So article 3 says the judical power of the SCOTUS extends to all cases arises in law, then the supremacy clause refers to the Constitution, and a bunch of other things, as the Supreme Law of the Land. So if the SCOTUS has judical power over all caes arising in law, and the Constitution is law, then therefore whenever there's a disagreement over a Constitutional issue the Supreme Court has the final say.

Besides someone has to apply the Constitution to law, otherwise its meaningless.
 
Wiseone said:
I know some people like to say and its often taught in schools that the SCOTUS grabbed the power of judicial review in Marburry vs. Madison, but frankly I think that's wrong since I believe the Constitution quite clearly gives the SCOTUS that power.

So article 3 which defines the judicial branch says



And the Suprmacy Clause says



So article 3 says the judical power of the SCOTUS extends to all cases arises in law, then the supremacy clause refers to the Constitution, and a bunch of other things, as the Supreme Law of the Land. So if the SCOTUS has judical power over all caes arising in law, and the Constitution is law, then therefore whenever there's a disagreement over a Constitutional issue the Supreme Court has the final say.

Besides someone has to apply the Constitution to law, otherwise its meaningless.
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I agree with you there. Besides that, it seems pretty clear that at least some proponents and opponents of judicial review believed that the SCOTUS would have that power under the constitution.
 
And there are certainly a whole set of new "Voting Rights Laws" that should make it to the SCOTUS in 2014, easily a top issue of our times.
Anagram said:
I agree with you there. Besides that, it seems pretty clear that at least some proponents and opponents of judicial review believed that the SCOTUS would have that power under the constitution.
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The Mark said:
I've always considered Congress the ultimate arbiter of constitutionality, since they can (in theory) change the constitution. I think?
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They can't change the words....but they can change a meaning. Ex: Obamacare where it decided that the governments power to tax extends to making people pay a fine for NOT buying from private corporations.
 
Kal'Stang said:
They can't change the words....but they can change a meaning. Ex: Obamacare where it decided that the governments power to tax extends to making people pay a fine for NOT buying from private corporations.
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I think they can ADD words.

Not sure about changing.

And "Obamacare" was not in any way a constitutional amendment, so far as I know...

Besides which, the SCOTUS said something to em along the lines of "no, you can't fine em', but you can call it a tax and then we're good".

Tis a tax, like everyone always knew.
 
The Mark said:
I think they can ADD words.

Not sure about changing.

And "Obamacare" was not in any way a constitutional amendment, so far as I know...

Besides which, the SCOTUS said something to em along the lines of "no, you can't fine em', but you can call it a tax and then we're good".

Tis a tax, like everyone always knew.
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So, in other words, the SC can play semantics to achieve a desired end instead of focusing on intent.
 
The Mark said:
I think they can ADD words.

Not sure about changing.

And "Obamacare" was not in any way a constitutional amendment, so far as I know...
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Are we talking about the same thing? I was refering to SCOTUS...they cannot add any words to the Constitution. Only the legislative branch may do that via the amendment process. They can however (even though they should not be able to) change the meaning of the words in the Constitution. Obamacare was an example of them doing just that.

The Mark said:
Besides which, the SCOTUS said something to em along the lines of "no, you can't fine em', but you can call it a tax and then we're good".

Tis a tax, like everyone always knew.
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No, its not a tax at all. Taxes are paid to a government and are used to benefit those that pay that tax. Obamacare does not do that because those that pay it in no way benefit from it.
 
radcen said:
So, in other words, the SC can play semantics to achieve a desired end instead of focusing on intent.
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Taxing us WAS the intent....

:mrgreen:
 
Kal'Stang said:
Are we talking about the same thing? I was refering to SCOTUS...they cannot add any words to the Constitution. Only the legislative branch may do that via the amendment process. They can however (even though they should not be able to) change the meaning of the words in the Constitution. Obamacare was an example of them doing just that.
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I was talking about congress.



Kal'Stang said:
No, its not a tax at all. Taxes are paid to a government and are used to benefit those that pay that tax. Obamacare does not do that because those that pay it in no way benefit from it.
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Obamacare originally said "buy insurance from one of these guys or we fine your ass". The SCOTUS said "you can't do that, but if you tax people who don't buy insurance, that's OK."


OR that's how I understood it.
 
The Mark said:
I was talking about congress.
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Ah, I was talking about SCOTUS since that is what the thread is about. :shrug:

danarhea said:
Obamacare originally said "buy insurance from one of these guys or we fine your ass". The SCOTUS said "you can't do that, but if you tax people who don't buy insurance, that's OK."


OR that's how I understood it.
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You're right, thats what they said. However if you take a look, no where does Obamacare call it a tax. Including at healthcare.gov which tells people what happens to those that don't have insurance. In that section the word "tax" does not appear even once. However the words "fee" and "penalty" does, several times. Even the government refuses to call it a tax. That section also states that when you pay the fee/penalty you also still have to fully pay for any medical costs you get. So....where is the benefit here? Where is the evidence that this is in actuality a "tax"? IE: You can call a cat a human, but that does not mean that it IS a human.
 
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