Your opening post is very poorly stated. I gather you think the SCOTUS has been getting out of hand ever since the Constitution was adopted in 1787.

Constitutions are not "sacred" documents like the Ten Commandments--carved in stone and handed down from heaven and valid forever. They are working documents designed to address the perceived problems of establishing government at a given time. If the 13 states had been static -- never changing -- the constitution would never have needed amending. The original 13 were dynamic, and more states were added. The economy grew along with the population, and the country became more complicated. New, unanticipated problems arose snd required resolution in the courts, because that is where people took their problems to be resolved. Not only have circumstances changed, but the commonly understood meaning of terms changes over time, as well.

My guess is that you would like to see an all-around smaller, less involved federal government. Maybe you feel that way about state, county, and city governments as well. Right? Does the phrase "Get government off our backs" ring any bells for you?

"Little appreciated, in an otherwise greatly appreciated opinion, is Justice Robert Jackson’s lyrical rejection of originalism in Youngstown Sheet & Tube Co. v. Sawyer.1 There, he waxed that “just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. . . . [T]hey largely cancel each other.”2 He deftly underlined the point with a footnote demonstrating how two of the most prominent Founders, who were also two of the three personalities that made up “Publius” (the author of The Federalist)—James Madison and Alexander Hamilton—utterly disagreed with one another about the Constitution’s meaning as soon as major controversies arose.3"
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5153&context=flr

Implicit in this kind or originalism is the notion that there was some uniform agreement on the meaning of the terms, or separation of powers in the constitution at the time it was written. This is wrong and comes from an oversimplification of history or very selective reading of a small number of historical documents. The constitution requires interpretation and the Supreme Court is the branch of government with the duty to do so. It also requires reinterpretation as the society and culture that the constitution serves "we the people" changes. The constitution is not, and should not be a dead letter document confined to the conditions and understandings of the 18th century.

To Bitter Crank, what the constitution is a document ,which a body of men and groups debated and agreed upon, that decides the structures and powers of the government. I am not saying it should not change, but change with an amendment because the definition of an amendment is a change to address issues in function. True new problems occured but nothing that Congress with powers agreed in the constitution. The courts are only there to address people saying this breaks this law or the constitution. Judges are suppose to analyze if a problem exists like the one where New York gave exclusive rights to Hudson river steamboats over to New Jersey and so did New Jersey. What the court had to do was say was this commerce across state lines, not invent a new principle which they judge by. They are to judge against the constitution and valid laws and the only discretion is suppose to he deciding whether this is or is not subject said right or power. True phrases change but the moment you use it in speech or document of make final either official speeches or documents, then you have interpret it with the context as well as the standard at time and place of usage of word in a language. Like if I made a business and I set rules saying Communications with family or friends unrelated with your current work. Than you understand me in the language and context of 2018 at that area, not any time period. Lastly to you, I am a moderate in politics who supports regulations especially in environment because of climate change and the risk it poses to our resources and land. I advocate for states to have more power in regard to public safety and such with more emphasis in people being mandated to get mentally screened in order to see who may be physcotic and needs treatment and such. Though libertarians would want me gone if I ever said it to such a person. As such I want more government but do not claim this would be constitutional and advocate to make amendments as we are suppose to.

To Prothero, the intent of the forefathers is not the constitution is suppose to be interpreted. There were many compromises and ideals that each of them had but they agreed upon the document in its wording today so we are to interpret it in such. They disagreed over whether the bank was constitutional not what the constitution meant. Hamilton said that this was necessary and proper in order for America to deal with its debt and Jefferson said that this was just unfounded power and overreach if government. The constitution was not in discussion but whether the bank fit the pre existing powers. That matter is left to a superior judge to say which is based upon the agreed upon meaning of the powers of Congress. To better better understand let me give you a semi-analogy. You have 5 kilos as the based judgement and and another object which you are trying to figure out if it is more or less. If more than you buy the object, not you do not. The 5 kilo is bot in dispute, just the object and it's true weight. Only relevant historical documents like dictionaries, debate on the language if the law and context is the basis in getting a very set interpretation. Not preside because human language is not as precise as it goes and may have a few implication. But back to my earlier post saying non of the actual cases relating to the commerce clause is based on the words. They made it up with no basis in text with language and context. Also reinterpretation is not valid for as I said earlier that interpretation is the range of meaning a sentence may put. It has to exist by the allowance of such language at its use and context. Also the constitution serves as the basic structure of the government and rule of law which this is a republic and not democracy where people rule. The relationship between of Federal to state to common people is described and the best argument against it serves the people is an amendment could come and nullify any protections of the people and have a dictatorship. Possible is all the state legislature were unanimously working together and started a state convention make and ratify such an amendment by themselves. Lastly, is the constitution is not dead because it was never living . In reality if a majority of people stopped following it, it would not be able change anything or effect any one of us. AND THE CONSTITUTION has been changed 27 times already and can keep changing only under the rules itself sets.

So, you are not the libertarian I thought you might be. All well and good, libertarian or not.

But let me ask you: Would you be in support of calling a constitutional convention in the next few years (it would take a few years to call one, most likely)? And, if you were in favor of calling a constitutional convention, what kind of constitutional document would you like to see?

How much of the existing constitution would you like to keep, and how much would you want to get rid of?

I for one, would like to have it clearly spelled out that CORPORATIONS ARE NOT PERSONS , in any sense, and CAN NEVER BE TREATED AS A PERSON. This would be to address the SCOTUS very very bad CITIZENS UNITED decision.

I would like to have the current amendments kept, I would like a intrastate commerce clause, which means control of commerce in the state. Though it may be denied if 3/4 of the state legislature denies it, just to keep our federal system in balance. Another is ban on all intoxicants and such halucigens. Lastly is a balance budget amendment where the feds can spend only what they have, except for natural disaster, wars, or insurrections among the people. Also get rid of Trumps tariff abilities. He should not have them under the current constitution based upon the fact only Congress can control commerce among foreign nations. Citizen United was interesting, the main argument was that corporations are groups of people essentially so they reasoned that if a person has the free speech than organizations should have the ability to use. Spending money can be speech since it speech means to Express a point or ideal. Though this tends lead to more corruption, so I would probably support an amendment against electioneering by corporation.

To Prothero, the intent of the forefathers is not the constitution is suppose to be interpreted. — BB100

Actually, it was.

No I miswrote, I said interpreting the constitution through there intent is not valid because they had there own ideals but compromrolised on powers in the words and followed what they agreed and ratified.

I would like to have the current amendments kept, I would like a intrastate commerce clause, which means control of commerce in the state. Though it may be denied if 3/4 of the state legislature denies it, just to keep our federal system in balance. Another is ban on all intoxicants and such halucigens. Lastly is a balance budget amendment where the feds can spend only what they have, except for natural disaster, wars, or insurrections among the people. Also get rid of Trumps tariff abilities. He should not have them under the current constitution based upon the fact only Congress can control commerce among foreign nations. Citizen United was interesting, the main argument was that corporations are groups of people essentially so they reasoned that if a person has the free speech than organizations should have the ability to use. Spending money can be speech since it speech means to Express a point or ideal. Though this tends lead to more corruption, so I would probably support an amendment against electioneering by corporation.

I see these comments a lot from non-attorneys, who seem to think that their interpretation of the Constitution is superior to the Supreme Court's. It isn't. The reality is that every single statute and regulation and rule that exists is subject to interpretation, and it's seldom the case that everyone agrees on the interpretation voiced by a controlling court. This is simply the nature of the beast when it comes to the practice of law. The law is not physics, and will never be so.

I have, however, noticed that the people who raise these arguments typically claim that the US Constitution is only legit if it is interpreted as the founder's intended. As if we can ever figure that out? Even a single founder, like Madison, changed his opinion at least twice, on the issue of central banking. So, it's Impossible to figure out what any single founder would have thought of a modern application of the Constitution, much less what they all thought --- they often agreed to compromises. Furthermore, very, very, very few Americans would want to live in a country that the founders created. The founders were against women voting, colored people voting, and poor white men voting. They also did not even trust rich white men with the power to elect the US president, which is why the electoral college was invented. They also cared little for freedom of religion and freedom of speech, as the First Amendment did not limit the states from enacting state churches and sending people to prison for blasphemy laws. The First Amendment was finally applied to the states through the due process clause of the 14th Amendment, in the late 1940s.

Many of the rights and freedoms we take for granted today, especially minority rights, would have been against the beliefs of the founders. I'm glad the US Supreme Court does interpret the US Constitution to keep up with the times and not to promote ancient fallacies, borrowing some language from Justice Black.

Nicely and succinctly stated.

You claim I am interpreting the constitution, but my main point is the claims of interpretation by the courts is not interpretation at all. It is baseless, for it takes up arguments that are not from agreed upon texts or implication of there agreement. I do not want a government run by the founders vision, but rather be honest in our decisions concerning the constitution. It has to be interpreted with words, phrases, and legal jargon at the time for when one applies language in communication, you have to use the language at that time which was used to understand it. An example is if your reading a newspaper from the 1700's, you would use a dictionary and common understandings of situations and context to understand the newspaper. Same in our current society, we have codes like c++ or matlab, or such that in order to understand them you use their language and rules of communications. The matter of the central bank was not concerning on what the constitution meant because they all agreed that they could make "Enact All laws necessary and proper to enforce the previous powers". They just argued was it really necessary and proper. Which means you have to have it in order to enforce the powers listed before and would it be appropriate to that situation. Most of them did come to a conclusion yes because in order to spend money you need such an institution. An analogy would be like I have 5 kg in one hand and have to decide whether another object is less or more than 5 kg, I am not arguing what i am scaling by, but the object in question. the matter of voting rights and such were addressed by changing the constitution in the 15th amendment and the 19th amendment which we would apply using the language at that time. This is proper way of handling the constitution where if something does not work, we do not make up a lie of the document, just add or change it to make it work to the current situations. Also, it was not the due process clause because that just makes sure every gets a judicial hearings or proper process like law making were enacted before your life, liberty or property were taken. it was the privileges and immunity clause which made the rights in the bill of rights applicable to the states. Also ancient fallacies are just opinions that are not held by current grouop of people. We are a republic which means rule of law is over the people, if the people want something there has to be due process( which means a manner of trial or making laws that are clear and made with proper process like elections and such).

BB100: You are interpreting the Constitution. What else do you think you'd be doing when you claim the courts are not adhering to the Constitution? You are simply wrong, and are commenting on a topic you know little about and are not even qualified to comment on. Have you studied Constitutional law? Are you familiar with the different amendments, and which ones are supposed to have broad versus narrow interpretations? Are you familiar with the key decisions that have been authored by the Supreme Court through the years? Are you an attorney? I am an attorney and while I do not specialize in Constitutional law, as only a small handful of attorneys do so, I am familiar enough with the Constitutional law to know you are flat-out wrong.

There is a natural tension between "originalist" and " living constitution" proponents on interpretations of the Constitution. This is IMO a good thing. Either side taken to an extreme is problematic. Here are two very good voices of each position discussing the issue:

https://www.youtube.com/watch?v=VGKgJdW55nc

I never denied it rather I said my MAIN point is that they are using baseless claims on the interpretation of it. If you claim I am wrong, than justify that claim with proof from truth and not use your authority as a lawyer to prove such claim.

as the First Amendment did not limit the states from enacting state churches and sending people to prison for blasphemy laws. The First Amendment was finally applied to the states through the due process clause of the 14th Amendment, in the late 1940s. — LD Saunders

That is a very important point in constitutional discussions. On your point above - that does not mean the founders thought one way or the other it - it just meant they thought it was a matter to be decided by the state, not the federal government. This was, and continues to be a major constitutional issue.

For example, if say the SCOTUS overturned Roe v wade, that does not mean they decided that abortion would be illegal - it would just return it to the states to decide on a state by state basis.

There has been, in many conservative or "originallists" minds, an over reach on the interpretation of the 14th amendment as a means to legislate from the bench, avoiding all that messy legislative stuff.

The 14th amendment is not really difficult since if you read the entire debate, context of enactment, and words definition you understand that the immunities and privilege clause state that the rights if the bill of rights cannot be infringed by states and equal protection refers that matters dealing with protections from direct harm like police not responding to blacks being lynched to white mobs but to whites protect them or letting a white person get a day early from a trial but a black person does not is not allowed and must be equal in nature. The important part is protect direct harm from source like police or criminal justice.

As an example - does the constitution ( 14th amendment ) provide for same sex marriage ? Or should individual states, and there citizens, decide if they want to legislate either for or against same sex marriage ?

How does this language relate to same sex marriage?

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I see room for both sides of the issue in this language.

Application of language requires context of speech and the word privaledges and immunities refer to the bill of rights because in its debates it was talking about the bill of rights. I already talked about equal protection and if it is not in the constitution or directly implicated than anything other is subject to the states. Remember that a constitution is undemocratic by nature because if restriction without the majority decides.

Your opening post is very poorly stated. I gather you think the SCOTUS has been getting out of hand ever since the Constitution was adopted in 1787. — Bitter Crank

No question that the OP was slop, but generously interpreting it, there was some truth to it. His initial point did make the point that the Constitution itself never provided that the Supreme Court was meant as a Constitutional Court, empowered with the ability to strike down laws as unconstitutional. They decided they had that power in 1803 in Marbury Madison. https://en.wikipedia.org/wiki/Marbury_v._Madison . The notion that a court has the power to strike down democratically passed laws is not universally accepted in Western nations today (the Dutch provide their courts no such power and the Finns have a legislative committee evaluate for Constitutionality for example). Jefferson was staunchly opposed to allowing the Court that much power:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] 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 maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." http://www.answers.com/Q/What_did_Thomas_Jefferson_say_about_judicial_review.

Constitutions are not "sacred" documents like the Ten Commandments--carved in stone and handed down from heaven and valid forever. They are working documents designed to address the perceived problems of establishing government at a given time. — Bitter Crank

And the counter to this position, again quoting Jefferson, "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

What you have done is just what you argued against, which is to make the Constitution sacred in the sense that what it is said to say is the highest law of the land, untouchable by democratic effort. The Justices, under this model, are vested with the power to say what the Constitution says, giving them the power of the gods, to decree what the law that 100s of millions of Americans must live under. Unless you impose some rule that restrains the Justices (like limiting their interpretation to original intent or some other rule), then the Justices can in fact twist and shape their interpretation however they please.

The Kavanaugh fight is evidence of the absurdly powerful role the Court plays in American society, with the left trying to arrive at whatever way, democratic or not, to change the rules to select an all powerful Justice who will swing the Court. The speak of amending the Constitution to eliminate the electoral college so that Republicans can't elect Presidents who will choose Justices. They speak of eliminating equal Senators for each state so that the Senate will not be Republican. They speak of removing Republican Presidents and Republican selected judges through impeachment. The stakes are high and they want their person in power, which means to me that the Court simply has too much power and should never have embarked on its mission to set policy for the American people.

If the net result of this whole mess is that the Court lose it's reputation as being fair and honest, then I say all the better. It should never have been placed where it is, and the day the democracy can assert actual control over the law of the land, all the better.

The constitution is an undemocratic document for it sets certain policy and laws off from democratic choice like the 1st amendment. The court must interpret accordingly to context applied language at time and debates on the amendments. This also applies to laws that are passed and they also need to be impartial unlike Kavanaugh's emotional burst or Ginsburg political comments.

The notion that a court has the power to strike down democratically passed laws is not universally accepted in Western nations today — Hanover

What is the point of comparing the US to any other nation? In some respects it's unique. The US has the oldest constitution in the world, some would say because the Supreme Court interprets it anew for each generation. Becoming rigid about interpretation, which is what I believe you favor, is a recipe for crisis and rejection of the constitution. Does that sound like a better idea to you?

The Kavanaugh drama is not about a problematic court. It's about an issue that genuinely divides Americans with strong feelings on both sides.

Constitutions are not "sacred" documents like the Ten Commandments--carved in stone and handed down from heaven and valid forever. They are working documents designed to address the perceived problems of establishing government at a given time. — Bitter Crank

at you have done is just what you argued against, which is to make the Constitution sacred in the sense that what it is said to say is the highest law of the land, untouchable by democratic effort. — Hanover

You don't have to respond, but I honestly don't see how you derived your conclusion from what you quoted. I would think that calling the constitution "working documents designed to address the perceived problems of establishing government at a given time" was not making the constitution sacred.

I think we were taught in school to hold the constitution as a sacred document. Many years since, I think the constitution is not sacred, not perfect, and too difficult to amend.

The liberal Warren Court was in place for a long time -- especially if one was a conservative. Now we will have a conservative court in place for a long time (so it will seem to liberals). If we are going to change justices more often, (like give them one ten year term) then the scope of their jurisdiction needs to be much more limited.

If you are going to call on Jefferson, you should remember he thought the constitution should be torn up and rewritten every generation.:smile:

Perhaps then we could get rid of the electoral college, winner take all states, closed primaries, lifetime tenures for the Supreme Court , states with 500,000 people having as much power in the Senate as states with 23 million people, voter disenfranchisement and creating "safe" districts for congressman through legislative gerrymandering (just a short wish list).

The Kavanaugh drama is not about a problematic court. — frank

It's about one side pushing through a liar because a) that's what they want (I'd say because that's what they value, but I don't think they have values), and b) they think he'll be their liar.

Did you know Oliver Wendell Holmes supported the forced sterilization of a woman who was diagnosed as a "moron" because she was raped and became pregnant, which showed her moral weakness?

Things could be worse.

That's an interesting take on the tu quoque fallacy. Let's not bother with mysogyny in the Netherlands because Saudi-Arabia is much worse!

zzzzzzzzz

What would happen then if, say, a Democratic Congress and President were to pass a law that banned private gun ownership? Without the Supreme Court ruling that it conflicts with the Second Amendment, will the new law just have to stand (until a Republican Congress and President repeat it)?

American eugenics proponents (whose side Holmes took in a sort of show trial designed to cement eugenics in American society) had already identified Jews as having inferior genes.

Hitler specifically held the American approach up as a model in Mein Kampf.

This is the kind of power the Supreme Court has.

What would happen then if, say, a Democratic Congress and President were to pass a law that banned private gun ownership? Without the Supreme Court ruling that it conflicts with the Second Amendment, will the new law just have to stand (until a Republican Congress and President repeat it)? — Michael

I'm not entirely opposed to the Court having some authority to evaluate the Constitutionality of legislation, but in doing so, there has to be some self-imposed restraint or you can in fact have Justices decreeing law from the bench. A Constitution can be upheld without an all powerful Court as well, by making it part of the process for legislatures to evaluate the Constitutionality before passage of the law.

What I can say is that the process we have in the US appears terribly flawed, where the Court is placed in the center of the political process, supposedly representing a wisdom beyond the grasp of the democracy.

An interesting idea that I noted when reading about other countries' processes is in making the Supreme Court reach all its decisions unanimously, without providing any avenue for dissent. They would then act like juries, being forced to sit in a small room arguing until they reached a unanimous and often compromised decision. If they hung, I guess the law would be upheld.