View Poll Results: Is the Supreme Court being the Ultimate Arbiter of Constituionality a Problem?

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  • The Supreme Court is not the ultimate arbiter of constitutionality

    6 17.65%
  • The supreme court is the ultimate arbiter and there are no problems with that

    5 14.71%
  • The supreme court is the ultimate arbiter and there are problems but it is the best system possible

    14 41.18%
  • the SCOTUS is the ultimate arbiter its a problem, but there are ways to improve (explain)

    8 23.53%
  • Other/Don't Know

    1 2.94%
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Thread: Supreme Court as the Ultimate Arbiter?

  1. #41
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Kobie View Post
    Your condescension is duly noted.

    I wasn't just picking on the second to pick on it, I just chose it because it's normally one that comes up in conversation regarding its ambiguity.

    I, for one, DON'T think that everything should be completely subject to the whims of people who have been dead for 200 years, especially if those whims were NOT codified in the document that some are advocating jailing people for violating. The general principles of the Bill of Rights, I am firmly behind, but to insist they're closed to interpretation as society progresses is, to me, asinine.
    As to that last, we aren't subject to the whims of people who lived 200 years ago. We are free to change any and all language in the Constitution through amendment, and we always have been. We simply have not in the modern era, allowing the court to make those changes ad hoc.

    Do I think the SCOTUS has become virtual Ayatollahs - yes. Do I think they are granted that power by Constitution - I'm with Jefferson - no. How could we change it to be closer to the ideal, that's where it gets complicated. I have a general idea, but the specifics elude me. Generally we should have a way to require justices decide solely upon the written text of the Constitution alone. We might start with doing away with precedence for SCOTUS alone. That's how they took this power in the first place.

  2. #42
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    Re: Supreme Court as the Ultimate Arbiter?

    I've always considered Congress the ultimate arbiter of constitutionality, since they can (in theory) change the constitution. I think?
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by The Mark View Post
    I've always considered Congress the ultimate arbiter of constitutionality, since they can (in theory) change the constitution. I think?
    They have a role in it. They have to pass an amendment by 2/3rds vote, then 38 states have to ratify the amendment.

    Really, if we're talking about changing the Constitution, the states hold the cards. The states can actually disband the federal government at any time,as long as 38 agree to do it.

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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by francois60 View Post
    They have a role in it. They have to pass an amendment by 2/3rds vote, then 38 states have to ratify the amendment.

    Really, if we're talking about changing the Constitution, the states hold the cards. The states can actually disband the federal government at any time,as long as 38 agree to do it.
    Seems unlikely that the various congress persons would attempt to pass such a change unless they knew their state congresses would ratify it.
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  5. #45
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by francois60 View Post
    They have a role in it. They have to pass an amendment by 2/3rds vote, then 38 states have to ratify the amendment.

    Really, if we're talking about changing the Constitution, the states hold the cards. The states can actually disband the federal government at any time,as long as 38 agree to do it.
    Now there's the ticket!

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    Re: Supreme Court as the Ultimate Arbiter?

    Heh. Unlikely. But in all seriousness, many people, especially those on the left, mistake the federal government's constitutional role of supremacy as something more than it is. The states delegated certain powers to the federal government, and can take those powers away at any time, assuming sufficient will and consensus. The federal government's power exists at the pleasure of the states.

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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Anagram View Post
    So questions:

    Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

    Do you agree that it is a problem?

    Is there actually away to solve the problem and make things better than they are now?
    Absolutely not

    Yes

    I will have to think about it...
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by francois60 View Post
    I think that's actually very wrong. The Constitution was written precisely to prevent the people from taking away each other's rights.

    What you're thinking of is more like what Britain has, the concept of Parliamentary Supremacy. Parliament can do whatever it wants, and is only accountable to the voters.
    While I respect your opinion, the 18th is the prime example that the constitution is written and is defined by the people. We the people determine our constitution and no one else.

  9. #49
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Anagram View Post
    I see the Supreme Court as intended to be the ultimate arbiter for constitutionality in the United States. I also think that it was intended to be that way. I know there are some schools of thought that the Supreme Court was never intended to have judicial review, and while I see the merits of that based on a few Jefferson quotes, ultimately I believe that it was intended. Alexander Hamilton seems to surmise as much in Federalist 78 and 80, as well as anti-federalist Robert Yates in anti-Federalist 78. There is also a Stanford study making a good case for it being in use long before the Marbury.

    But I'm wondering if this is such a good idea. Many Supreme Court cases are decided 5-4, and after the case becomes fairly rigid precedent forever, with little chance of changing, although the court has certainly reversed itself, with over 100 reversals in the last 80 years. The most obvious example being the difference between Plessy v Ferguson in 1896 and Brown vs Board of Education in 1954. Still though, precedent is fairly likely to stand unless clearly wrong. What bothers me though, is that this near permanence of some of these decisions would be different if one judge retired during a Democrat's term instead of a Republican's or vice versa. Although there are a few David Souter's generally each president knows exactly what he's going to get when he appoints a judge. For instance if Ginsburg or Breyer had retired or died during Bush's presidency, we likely would've had a different opinion against the Health Care Mandate. If Scalia or Thomas had retired in 2009 we would've most likely had a different ruling in Citizen's United. Now we have these same types of problems in Congress, the Presidency, and state legislatures too. Sometimes one of those makes a bad decision. However, it is relatively easy to correct those. If the bad decision was unconstitutional the courts could strike it down, and if it was an otherwise bad decision the people have opportunities relatively frequently to correct them by voting other members in. For Supreme Court mistakes though, not only do you have to wait for the membership to change, which can take years because of their lifelong terms, you must go through the rigorous process of having a case brought to them and accepted by them, and hope that the argument is compelling enough that it overrules the precedent. Chances are that the average person believes the Supreme Court made at least one wrong decision recently between Citizens United and NFIB v. Sebelius among the other hundreds of cases the SCOTUS rules on, but that there will be no opportunity to change the decision any time soon, and possibly for decades.

    I think Jefferson is correct when he says: "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."

    So I do think there are some problems with the role of the SCOTUS. However, I'm not sure there's anything that can really be done to fix them. I can't think of a better system than the one we have now. I don't think letting individual states overrule Supreme Court cases is the best idea. Having potentially 50 different views on constitutionality with no way to enforce anything nationally if an individual state disagrees. I'm not really sure how to put a check on the power of the Supreme Court on constitutionality, without creating another unchecked body.

    So questions:

    Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

    Do you agree that it is a problem?

    Is there actually away to solve the problem and make things better than they are now?
    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 wasnít constitutional. Congress of course could override his veto.

    It seems the framers left the question of who decides what is and isnít 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 isnít any other way than to let the SCOTUS decide what is and isnít 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 canít see each state deciding what is or isnít 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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  10. #50
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by hallam View Post
    While I respect your opinion, the 18th is the prime example that the constitution is written and is defined by the people. We the people determine our constitution and no one else.
    There's a process for that though, and it takes more than a bare majority. A lot more. Sure, the people decide, but only when there's mass consensus. Otherwise, the majority is constrained by certain rules that prevent them from having their way with the minority.

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