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Thread: Abortion and Immigration Rules

  1. #21
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by AlbqOwl View Post
    "With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482...

    From Federalist #78
    Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
    Federalist No. 78 | What Would The Founders Think?

    . . .On this point, David P. McGinley has an interesting piece in American Thinker entitled Our Dying Constitution...The Power of the Judiciary | What Would The Founders Think?

    Rebut it if you can.
    Certainly:

    Now I will have to respond in two posts since your quoted post takes up a lot of the 5000 allotted characters. I will address the general point and the Federalist Paper quote first.

    Let me preface my response with this statement. Quoting one or two "Founding Fathers" to use as a broad brush for the views of ALL the people who worked to create the Constitution is fallacious. People never agree with everything other people think, feel, or believe, as exemplified in all the debates in this and other Forums.

    So, if those "Founding Fathers" all agreed with Jefferson, then immediately after the Marbury decision Congress would have amended the Constitution to address judicial review. That does not appear to be the case.

    In point of fact they had no problem doing so in other circumstances, since they did not hesitate to do so with the very first new amendment, the 11th Amendment enacted February 7, 1795:

    ...deals with each state's sovereign immunity and was adopted to overrule the U.S. Supreme Court's decision in Chisholm v. Georgia, 2 U.S. 419 (1793). "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
    https://en.wikipedia.org/wiki/Eleven...s_Constitution

    Now you quoted Jefferson four times, and that Federalist citation is attributed to Alexander Hamilton.

    Let's address your Hamilton quote first. From that same publication:

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
    The Federalist #78

    I can only assume that you got your quote from some website supporting your argument. But is it clear from a reading of the entire publication that Hamilton was actually arguing that the relative weakness of it's power in comparison to the Executive and Legislative branches supported both a need for the judiciary to be independent of control, and to exercise a power of judicial review. In fact, further reading provides his explanations as to why this does not make the Court superior to Congress.

    So clearly you did not read, did not understand, or selectively quoted in hopes a reader would simply assume you made a valid point. In fact, you misused the citation when making your point. (End of first response.)
    Last edited by Captain Adverse; 03-18-17 at 01:51 PM.
    If I stop responding it doesn't mean I've conceded the point or agree with you. It only means I've made my point and I don't mind you having the last word. Please wait a few minutes before "quoting" me. I often correct errors for a minute or two after I post before the final product is ready.

  2. #22
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by Captain Adverse View Post
    Certainly:

    Now I will have to respond in two posts since your quoted post takes up a lot of the 5000 allotted characters. I will address the general point and the Federalist Paper quote first.

    Let me preface my response with this statement. Quoting one or two "Founding Fathers" to use as a broad brush for the views of ALL the people who worked to create the Constitution is fallacious. People never agree with everything other people think, feel, or believe, as exemplified in all the debates in this and other Forums.

    So, if those "Founding Fathers" all agreed with Jefferson, then immediately after the Marbury decision Congress would have amended the Constitution to address judicial review. That does not appear to be the case.

    In point of fact they had no problem doing so in other circumstances, since they did not hesitate to do so with the very first new amendment, the 11th Amendment enacted February 7, 1795:

    https://en.wikipedia.org/wiki/Eleven...s_Constitution

    Now you quoted Jefferson four times, and that Federalist citation is attributed to Alexander Hamilton.

    Let's address your Hamilton quote first. From that same publication:

    The Federalist #78

    I can only assume that you got your quote from some website supporting your argument. But is it clear from a reading of the entire publication that Hamilton was actually arguing that the relative weakness of it's power in comparison to the Executive and Legislative branches supported both a need for the judiciary to be independent of control, and to exercise a power of judicial review. In fact, further reading provides his explanations as to why this does not make the Court superior to Congress.

    So clearly you did not read, did not understand, or selectively quoted in hopes a reader would simply assume you made a valid point. In fact, you misused the citation when making your point. (End of first response.)
    And further he said:

    . . .Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . .

    Context is everything.
    Whatever flaws or failings, I can support the sinner who gets it right in the end over the virtuous saint who doesn't have a clue how to get it done--Foxfyre
    "I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it." --Benjamin Franklin 1776

  3. #23
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by AlbqOwl View Post
    [indent]"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482

    "A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:298

    "The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807. FE 9:68

    "The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow, 1801. ME 10:223

    "It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to James Pleasants, 1821. FE 10:198
    (Second half) Now for Thomas Jefferson.

    You know that case Marbury v. Madison? Did you realize that this case occurred at the beginning of the new administration of President Thomas Jefferson?

    John Adams had appointed a number of Federal judges, including William Marbury whose appointment had already been approved by the Senate. Adams and Jefferson at this point were political opponents. Some of the appointment had not been delivered and Adams on his last day in office tried to make sure they did. Jefferson chose not to allow the undelivered appointments, and his Secretary of State James Madison did not send them out. Marbury sued to get a writ of mandamus from SCOTUS under the Judiciary Act of 1789, ordering the Secretary deliver his appointment.

    Chief Justice John Marshall (also appointed by Adams) was presented with three issues and ruled as follows:

    Did Marbury have a right to the commission? Yes, and it should have been delivered.

    Do the laws of the country give Marbury a legal remedy? Yes, a writ of mandamus is appropriate.

    Is asking the Supreme Court for a writ of mandamus the correct legal remedy? No, because the SCOTUS does not have jurisdiction, as it is an appellate court not a court of first review. That the provision of the Judiciary Act of 1789 allowing SCOTUS to issue writs of mandamus was un-Constitutional under Article III of the Constitution.

    The first two holdings "pissed" (to say the least) Jefferson off, while the third firmly established the rule of Judicial review.

    Please notice ALL of your Jefferson quotes occur AFTER this SCOTUS decision. Let's just say Jefferson was not a very forgiving man.

    Still, Jefferson had no hand in writing the Constitution as he was serving as ambassador to France. He was also small central government "Articles of Confederation" supporter.

    If one looks at his draft for the Constitution of Virginia 1783 one notes that all Judicial appointments are made by joint ballot of the Assembly, and all levels of court are not term limited, but hold office are as long as they remain in good behavior. They can be removed by impeachment. https://founders.archives.gov/docume...6-02-0255-0004

    That just brings me back to the point that not all Founding Father's agreed on everything. Jefferson was also clearly upset about the Marbury decision. Yet where is the effort on Constitutional reform of this issue during his administration? (Crickets).

    However, there is no real argument against his personal and political reasons for opposition to the increased power of ALL branches of the Federal government, including the Judiciary.

    His views were clearly not shared by the majority of the Founders or we would still (if our nation didn't dissolve beforehand) be laboring under the Articles of Confederation.

    As for the last citation, appeal to authority? So that is that gentleman's position...big deal.
    Last edited by Captain Adverse; 03-18-17 at 03:12 PM.
    If I stop responding it doesn't mean I've conceded the point or agree with you. It only means I've made my point and I don't mind you having the last word. Please wait a few minutes before "quoting" me. I often correct errors for a minute or two after I post before the final product is ready.

  4. #24
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by AlbqOwl View Post
    And further he said:

    . . .Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . .

    Context is everything.
    Umm, isn't that what I've already said:

    Quote Originally Posted by Captain Adverse View Post
    So the Founders would see nothing wrong with the process as applied to Federal law. After all, anything they did not agree with could be addressed via act of Congress or a new Constitutional Amendment.

    That is STILL the case.

    So if enough citizens believe something should be addressed by law or Amendment, they have that right to push for Congress to act.
    If I stop responding it doesn't mean I've conceded the point or agree with you. It only means I've made my point and I don't mind you having the last word. Please wait a few minutes before "quoting" me. I often correct errors for a minute or two after I post before the final product is ready.

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    Re: Abortion and Immigration Rules

    i have to say this is an interesting read between Captain Adverse and AlbqOwl, whom both posters i respect!

    Quote Originally Posted by Checkerboard Strangler View Post
    Despite its reputation as a liberal stronghold, San Francisco has actually been run by a small cadre of fiercely right wing libertarian technocrats for many years.

  6. #26
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by Captain Adverse View Post
    Umm, isn't that what I've already said:
    That may be what you intended. I am not seeing you agreeing with my take on the history or the Constitution.
    Whatever flaws or failings, I can support the sinner who gets it right in the end over the virtuous saint who doesn't have a clue how to get it done--Foxfyre
    "I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it." --Benjamin Franklin 1776

  7. #27
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by AlbqOwl View Post
    That may be what you intended. I am not seeing you agreeing with my take on the history or the Constitution.
    That's right. As clearly explained in post after post I do NOT agree with your "take on the history of the Constitution."

    There are many things occurring today that would surprise and dismay time-travelers from the 18th century.

    Some, after study and contemplation may not agree with how things turned out today. (That would include Thomas Jefferson, who envisioned a nation based on an agricultural economy operated by yeoman farmers.)

    Hamilton, who was a strong supporter of Federalism, might be tickled to death with glee.

    The bottom line is that if the majority of those "Founding Fathers" opposed the doctrine of Judicial Review (which clearly would not include Hamilton), they had both the power and opportunity to amend the constitution just like they did via the 11th Amendment.

    They did not. That argues against this post:

    Quote Originally Posted by AlbqOwl View Post
    We have a dangerous situation in this country in that it is not the elected representatives of the people (the Congress) signed by the elected President of the country who decide what the law of the land will be. The law of the land is now determined by judges who somehow have been given power to dictate what the law of the land will be.

    This was NEVER intended by the Founders or the people when they signed and the states ratified the Constitution of the United States. For the judges to do this is in itself unconstitutional.
    That is because the Doctrine of Judicial Review empowers the SCOTUS with determining if an action or a law is Constitutional or not.

    Their rulings (which BTW I don't always agree with, but this is an argument on Constitutional validity, not my personal politics) determine if something is protected or not protected as a right.

    The law does not give us rights, the law is supposed to protect our rights. IMO all SCOTUS is doing is indicating whether we are free to do something or can be restricted by law from doing it.

    If you consider that "making law," as opposed to enforcing only laws that are valid...you are entitled to that opinion I guess. :
    Last edited by Captain Adverse; 03-18-17 at 06:00 PM.
    If I stop responding it doesn't mean I've conceded the point or agree with you. It only means I've made my point and I don't mind you having the last word. Please wait a few minutes before "quoting" me. I often correct errors for a minute or two after I post before the final product is ready.

  8. #28
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by Captain Adverse View Post
    (Second half) Now for Thomas Jefferson.

    You know that case Marbury v. Madison? Did you realize that this case occurred at the beginning of the new administration of President Thomas Jefferson?

    John Adams had appointed a number of Federal judges, including William Marbury whose appointment had already been approved by the Senate. Adams and Jefferson at this point were political opponents. Some of the appointment had not been delivered and Adams on his last day in office tried to make sure they did. Jefferson chose not to allow the undelivered appointments, and his Secretary of State James Madison did not send them out. Marbury sued to get a writ of mandamus from SCOTUS under the Judiciary Act of 1789, ordering the Secretary deliver his appointment.

    Chief Justice John Marshall (also appointed by Adams) was presented with three issues and ruled as follows:

    Did Marbury have a right to the commission? Yes, and it should have been delivered.

    Do the laws of the country give Marbury a legal remedy? Yes, a writ of mandamus is appropriate.

    Is asking the Supreme Court for a writ of mandamus the correct legal remedy? No, because the SCOTUS does not have jurisdiction, as it is an appellate court not a court of first review. That the provision of the Judiciary Act of 1789 allowing SCOTUS to issue writs of mandamus was un-Constitutional under Article III of the Constitution.

    The first two holdings "pissed" (to say the least) Jefferson off, while the third firmly established the rule of Judicial review.

    Please notice ALL of your Jefferson quotes occur AFTER this SCOTUS decision. Let's just say Jefferson was not a very forgiving man.

    Still, Jefferson had no hand in writing the Constitution as he was serving as ambassador to France. He was also small central government "Articles of Confederation" supporter.

    If one looks at his draft for the Constitution of Virginia 1783 one notes that all Judicial appointments are made by joint ballot of the Assembly, and all levels of court are not term limited, but hold office are as long as they remain in good behavior. They can be removed by impeachment. https://founders.archives.gov/docume...6-02-0255-0004

    That just brings me back to the point that not all Founding Father's agreed on everything. Jefferson was also clearly upset about the Marbury decision. Yet where is the effort on Constitutional reform of this issue during his administration? (Crickets).

    However, there is no real argument against his personal and political reasons for opposition to the increased power of ALL branches of the Federal government, including the Judiciary.

    His views were clearly not shared by the majority of the Founders or we would still (if our nation didn't dissolve beforehand) be laboring under the Articles of Confederation.

    As for the last citation, appeal to authority? So that is that gentleman's position...big deal.
    The gentleman's position that also was not without merit in our fledgling Republic and whether he didn't actually pen the words, he did have a huge influence on the content and structure of the Constitution that was signed:

    Although Thomas Jefferson was in France serving as United States minister when the Federal Constitution was written in 1787, he was able to influence the development of the federal government through his correspondence. Later his actions as the first secretary of state, vice president, leader of the first political opposition party, and third president of the United States were crucial in shaping the look of the nation's capital and defining the powers of the Constitution and the nature of the emerging republic. . .
    https://www.loc.gov/exhibits/jefferson/jefffed.html

    As for his motives, I don't question Jefferson's motives. He clearly opposed Marbury and was of the opinion that the Executive, Legislative, and Judicial branches of government should bear equal authority in interpretation of the Constitution. And, if no agreement should exist, then the states themselves should be the mediator of the dispute. He was overruled for, as you pointed out, there was no solid consensus on several matters among the Founders. And that is why it took three long years of active work to write the Consitution and there was much compromise among the parties to arrive at a document that most could sign with a clear conscience.

    But nobody, not Jefferson, not Hamilton, none of them could possibly have imagined a court system, let alone a Supreme Court, that would be split 5/4 on almost every decision which obviously indicates roughly half will not be going by constitutional principles on every vote. And they could not imagine a court system exercising the massive amount of judicial overreach that we see far too often these days.
    Whatever flaws or failings, I can support the sinner who gets it right in the end over the virtuous saint who doesn't have a clue how to get it done--Foxfyre
    "I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it." --Benjamin Franklin 1776

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    Re: Abortion and Immigration Rules

    Quote Originally Posted by AlbqOwl View Post
    We have a dangerous situation in this country in that it is not the elected representatives of the people (the Congress) signed by the elected President of the country who decide what the law of the land will be. The law of the land is now determined by judges who somehow have been given power to dictate what the law of the land will be.

    This was NEVER intended by the Founders or the people when they signed and the states ratified the Constitution of the United States. For the judges to do this is in itself unconstitutional.

    IMO, even when the court declares a law unconstitutional, the power is not given to the court to overturn the law. It is incumbant upon the CONGRESS, sworn to uphold the Constitution, to overturn or amend the law. If they do not, and we the people believe our elected representatives are not fulfilling their obligation to uphold the Constitution, then it is up to us to deal with it at the ballot box or by recall of our elected representatives.

    It is a very dangerous thing when the court takes upon itself to ignore the law of the land and put into effect what it thinks the law should be.
    well i would as i have many times said , that the founders created that the senate of the state governments would be the first bulwark against unconstitutional acts by not allowing legislation to pass the senate floor from the house and if such legislation did manage to pass, then USSC would be the second bulwark.

    but i do clearly remember reading Madison some time ago where he does say the states themselves are the final authority on whats constitutional.

    Quote Originally Posted by Checkerboard Strangler View Post
    Despite its reputation as a liberal stronghold, San Francisco has actually been run by a small cadre of fiercely right wing libertarian technocrats for many years.

  10. #30
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    Re: Abortion and Immigration Rules

    Quote Originally Posted by Master PO View Post
    well i would as i have many times said , that the founders created that the senate of the state governments would be the first bulwark against unconstitutional acts by not allowing legislation to pass the senate floor from the house and if such legislation did manage to pass, then USSC would be the second bulwark.

    but i do clearly remember reading Madison some time ago where he does say the states themselves are the final authority on whats constitutional.
    That is where I think common sense comes in. If the Legislature and Executive and SCOTUS all disagree on the constitutionality of something, then the only proper authority should be the states themselves. It certainly isn't as if the justices of the SCOTUS suddenly become infallible upon obtaining the honor of their position. We know that from some of the truly dreadful decisions that have been handed down.

    And it is even more dangerous when we have half the court making decisions on what the justices think should be constitutional and giving no importance to what the Constitution originally intended in the matter.
    Whatever flaws or failings, I can support the sinner who gets it right in the end over the virtuous saint who doesn't have a clue how to get it done--Foxfyre
    "I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it." --Benjamin Franklin 1776

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