"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Why is that so difficult to understand?

How about these parts, from Amendment XIV to the Constitution:

Section 1. 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 any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce by appropriate legislation, the provisions of this article.

Those were our elected representatives, attempting to keep the un-elected judiciary (11th Circuit Court of Appeals, are you surprised?) in check, in line with their powers granted in Section 5 of Amendment XIV of the Constutition of the United States of America.

The page you link can define the Senate bill as a bill of attainder, by assuming that Terri Schindler wanted to die, and was being punished by continued feeding. This in turn requires the assumption that Michael Schiavo was telling the truth. Absent any corroborating evidence, that's a dangerous assumption. A sane judge would have disregarded it as hearsay. Given that Michael Schiavo lied about "forsaking all others" and "in sickness and in health," how can any oath he swore be worth the air he breathed to do it?

Congress ordered the federal courts to do a full review of the case. They unilaterally decided to ignore the order. Imagine the indignation of the courts if an appellant told them to take a flying leap.

The phrase "contempt of court" might carry a lot more legal weight, if the courts weren't acting so contemptibly in the first place.

I knew this was going to happen as soon as I sent it. I'm not altogether interested in getting into a debate on Schiavo except to say the following.

The 11th Circuit declared the Federal "Schiavo Law" unconstitutional:

I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore,
this court and the district court are without jurisdiction in this case under that 1
special Act and should refuse to exercise any jurisdiction that we may otherwise
have in this case.

As I said in the piece...the law is what it is. The point I was trying to make is what do we do when the law doesn't make sense? Appeal? Schiavo went to the Supremes and they, rightly as far as I'm concerned, refused to hear it. THEN what?

Niether the Berger case or Schiavo case effected people deeply enough and on a large enough scale to cause action to be taken. Eventually either the weight of various cases or a single case will tip the scale and people will start to wake up. Our Judicial System Makes. No. Sense. We have convicted pedophiles walking the streets while white collar criminals like Martha Stewart serve a single year and leave prison better off financially than when they went in.

To answer my rhetorical questions I will say that the resulting civil strife will make the School Segregation Riots of the early 70's look like a Church picnic.

Gus3, you seem to imply by your quotations that the Schiavo case should be the one to draw us to the streets in protest. I agree with you...but unfortunately the rest of the country didn't agree with us. Don't get me wrong, there was much hand wringing and passionate debate but there wasn't a mob reaction as in the case of the desegregation troubles. My question is if this didn't do it...WHAT WILL?

Some were drawn to protest, but those most needing to protest are the least able. (www.notdeadyet.org)

At the same time, I could probably put on a sandwich board with "Today Terri Schindler, Tomorrow ????" on one side and "Would Terri be alive if she were HIV+?" on the other, walk through the Castro in San Francisco, and live to tell the tale. Advocates for the chronically ill are quite frankly scared sh--less over what happened to Terri.

As an interested party in Pub. L.109-3, the 11th Circuit had no jurisdiction to declare it unconstitutional. Again, they wouldn't like it if I unilaterally declared their dogmata unconstitutional, just because I think so. I guess they like civil disobedience, as long as they aren't the ones whose orders are being disobeyed.

For myself, I think it's time to stop feeding Rehnquist. He's not doing so great, probably won't get any better, and his mental capacity appears questionable at best.

As for Sandy Burglar, he's just one more nail in the coffin of the "Clinton legacy." Three years, thirty years, a firing squad, probably aren't going to do any more damage to him than the humiliation he has already dealt to himself. He owes a debt to society, but don't worry, we'll be more than willing to make him pay every time he shows his face in public.

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Counter Perspective
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George Bush Has to Deal With All Kinds of Religious Nuts (Foreign and Domestic)
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Overkilling Schiavo
By: Rachel Marsden

TV psychic guy, John Edward, said on ABC’s “The View” the other day that Terri Schiavo “knows about everything that’s going on around her.” I’m venturing to guess that her next line was probably, “And you’re all total fricking idiots!”

The private dispute between members of the Schiavo family over the life of their severely brain-damaged daughter/wife, Terri, should never have become the media circus that it did. Someone should have hired Michael Schiavo’s anti-food tube lawyer to shut down all the greasy spoons within a 20 mile radius that were fuelling the reflex-driven, brain-dead reporters covering the case.

No one comes out of this looking good. Not President Bush, not the Democrats or the Republicans, not Schiavo’s family, and certainly not the hyperventilating media hacks whose own plugs I’d really like to pull.

First, so I’m not accused of bench warming, here’s my personal position: I believe that something is seriously wrong when John Edward--a guy who makes a living ‘communicating’ with the dead--has to come on TV and fill us in on what’s really up with Terri Schiavo. Put it this way: If Mr. “I See Dead People” is the only one who can really be seen to speak for me with any authority, then I think it’s safe to say that I’m gone. Neither science nor theology dictates that--common sense does.

In a few weeks, we’re going to look back and realize that far too many people lost their minds when they morphed into piranhas for the Schiavo feeding frenzy. Irreparable damage would have occurred, had some of these amped-up fools succeeded in their efforts.

Schiavo came dangerously close to being the Republican Party’s Elian Gonzales. I’m talking about the little refugee boy who President Bill Clinton ordered ripped from his Miami-based relatives and given to his Cuban father in defiance of the courts. Some conservative pundits have applied a “they did it, so why the heck shouldn’t we?” argument to the Schiavo situation. Just because the Democrats made themselves into fools over the Gonzales case, it doesn’t mean that Republicans have earned a “free cock-up” pass.

Schiavo’s case dragged on for years, and in nearly every instance, the court sided with the husband’s wish to remove the feeding tube based on evidence that it’s what his wife would have wanted. If Schiavo’s parents had proof to the contrary, or any significant evidence that the CAT scans and electroencephalographic tests indicating brain-death were wrong, then they should have pulled out all the stops to present it at trial--not after the fact, in the court of public opinion. Instead, they’ve recently been out promoting “Terri’s Greatest Video Hits” collection from years ago. It’s as if Terri and Madonna have the same agent.

Court cases can’t be retried simply on the basis that one party failed to do its homework at the original trial and didn’t like the outcome as a result. I don’t care if John Edward would have claimed to be getting psychic pizza requests from Terri after the feeding tube had been yanked. There was no ‘new’ evidence here.

Immense lobbying and media pressure had been applied to GOP-appointed judges to reverse the decision to remove Schiavo’s feeding tube late in the game. Caving would have turned these judges into activists and ideologues themselves, and it would have cost President Bush every single one of his upcoming judicial nominees.

No strict constructionist judge would have overturned the decision to remove the feeding tube in this case. Such a move would have been far more damaging to the integrity of the courts in the long run. For once, the courts behaved as they ought to have, and instead of being congratulated, they’re catching holy hell for it from people with a political axe to grind.

None of this can be chalked up to a leftist conspiracy. The original Florida state judge (George Greer) who approved Michael Schiavo’s request to have the feeding tube removed is a Republican Jeb Bush appointee and a Southern Baptist. One of the dissenting judges (Ed Carnes) on the three-member panel of the 11th Circuit Appeals Court that denied the reinsertion of the tube was a Bush Sr. appointee.

In rejecting Terri’s parents’ final appeal to the 11th Circuit, Judge Stanley Birch -- yet another Bush Sr. appointee -- wrote that “any further action by our court or the district court would be improper. While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.” He added the politicians who became involved in the case “have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people--our Constitution.”

Conservatives rightfully blow a gasket when liberal judges use the bench to push through their agendas related to issues like gay marriage. If Republican judges would have bent over for the right-to-life movement in this case, then the fear of overturning Roe v. Wade would have constituted the Democrats’ next fright campaign. And it would have been devastating--mainly because Schiavo would have finally given it the traction that Democrats have been looking for.

President Bush did what he had to do. He made a show of leadership by taking a position on the issue, even though his statement in favor of erring on the side of life illustrated the trouble with subscribing to the full meal deal for any given ideology.

As Governor of Texas, Bush repeatedly lit up Death Row inmates like Christmas trees hooked up to a “Clapper”. Back then, he wasn’t a fan of “erring on the side of life.”

According to Rob Warden -- President of the Northwestern University Law School’s Center on Wrongful Convictions -- “roughly a third of all capital cases are overturned. Most of those are reversed and remanded for retrial. But since 1972…more than 120 have been freed. There are 119 who have been exonerated--meaning that they were returned to the status of legally innocent.”

If only Bush would have given the lives of these people the same value and respect as he did Terri’s. But given that Bush’s base consists largely of pro-death penalty right-to-lifers, it’s silence -- not hypocrisy -- that would have alienated this crowd.

The legislative and executive branches of government can’t overturn court decisions that they don’t like any more so than Judge Ruth Bader Ginsburg can tell the President which country to invade. As so many polls related to the Schiavo case have shown, there is little public support for politicians sticking their noses into private court matters. The Schiavo case isn’t a matter of reweaving the fabric of society--unlike the case of activist liberal judges foisting the gay marriage agenda on society when there’s little appetite for it. It’s a private family fight that became the rollercoaster ride everyone wanted to hop aboard for the sake of a cheap thrill.

In getting caught up in the horserace of husband vs. parents, courts vs. politicians, and conservatives vs. liberals, the media has virtually ignored the larger, more important issue that when Terri Schiavo was fully-conscious and functional, she had chosen starvation. She battled an eating disorder and struggled constantly with her weight. According to a Newsweek report, she shed more than 100 pounds, developed bulimia, and ultimately ended up brain-damaged as a result of a heart-attack brought on by a starvation-induced electrolyte imbalance. She and her husband were given a million dollar malpractice award as the result of a doctor not having detected and treated her disease.

I’ll bet that when Terri Schiavo, like many other young women, looked at pictures in magazines of glamorous young starlets with their collarbones sticking out, acting as bone racks for some Versace or Dolce and Gabbana creation, she had a tough time picturing the uglier side of her disordered eating. She ended up living it.

Terri Schiavo lying in a hospital bed should have taken Paris Hilton’s place on teen magazine covers as the new poster girl for the realities of ‘anorexic chic’, under the heading, “That’s hot?!” The media blew an opportunity to prevent other women from suffering the same fate as Terri.

And finally, the press should be appalled at how it has portrayed Terri's husband. He has been assigned the requisite red horns, tail and pitchfork in this particular movie, with little or no proof to back up the nasty claims made against him. Granted we know that he took up with another woman after giving up hope on his brain-dead wife ever recovering, seven years after her accident. So what? There are guys out there who would screw around on their wife if she chipped a nail, let alone turned turnip. This may make him a candidate for "Schmuck of the Year", but hardly a ‘murderer’.

We also know that he became a nurse to better care for his wife, and that he turned down multi-million dollar offers to walk away and abandon her.

Conservatives can’t have it both ways: Either they value the institution of marriage, or they don’t. On her wedding day, Terri Schiavo’s father walked her down the aisle and gave her away to Michael Schiavo. That’s supposed to actually mean something. And as her husband, he honored his vow to be by her side until the end.

There are no villains here, just a lot of shortsighted idiots who, thankfully, never got their way. Now may this whole fiasco just finally rest in peace.

http://www.rachelmarsden.com/columns/schiavo.htm

augurwell: This whole long-winded argument falls apart with this one clause:

the court sided with the husband’s wish to remove the feeding tube based on evidence that it’s what his wife would have wanted.

The only "evidence" was Michael Schiavo's word. There was no objective, tangible evidence that she wanted this. But, given the other callous remarks, somehow I doubt you care.

-
Gus
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I hope when your old and more senile (As you must suffer from attention deficit disorder unable to fathom an in-depth argument.) that you get your way and are kept alive to suffer indefinitely for many years to come.-
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I for one would prefer the mercy we would give to an injured horse.
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PS For some reason the story I transferred above did not separate into paragraphs ?


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You may find more uncommon sense by Rachel Marsden here:
http://www.rachelmarsden.com/



GES*

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augur: Thanks for proving me right. And if your version of "the mercy we'd give a horse" is "starving and dehydrating for two agonizing weeks," then you are welcome to it. After all, I heard you say so myself. Why should I have to prove it with paperwork?

Again, turn the situation around: If someone tried to do to Ms. Marsden what Michael Schiavo did to Terri, do you think poor Rachel would take exception to it? In her case, well, I just find it difficult to care. She seems so eager to make sure Terri's dead, it's almost like she's impatient for her turn.

Now go find out the facts of Terri Schindler's condition and the history of her PVS "diagnosis," not just what some talking head says while she plays amateur neurologist on the Internet.

Nope, augurwell, you're right, I wouldn't want to live like Terri Schiavo. But neither would I want to have severe Down's Syndrome or Trisomy 13. Neither would I like to drown and have an anoxic brain injury. But if I starve a person with one of those disabilities to death, I assure you that no one will call it 'merciful', and I'll go to the electric chair.

If your argument is correct, augurwell, and she did have PVS, then you defeat your own argument- she was merely a brainstem and could have no perception of pain or suffering by definition. If she wasn't in PVS, then this was in fact murder, the state being an accessory after the fact.

Your lack of understanding of this case only exemplifies why it is dangerous business for someone else to determine what quality of life you have, especially when it seems that our lives now depend on it.

Gus3: The only "evidence" was Michael Schiavo's word. There was no objective, tangible evidence that she wanted this. But, given the other callous remarks, somehow I doubt you care.

===

It was not just Michael Schiavo's word. A Florida lawyer who bloged the case wrote (on the blog) that the contention that it was all on Michael's word and nothing else was becoming one of the big myths about the case.

There was a trial on this issue, with witnesses for and against, they were cross-examined and their testimony considered. The judge found clear and convincing evidence that Theresa would not want to live as she was. If he had not, then he would have ruled in favor of life, as required by the higher court.

A couple of years later, the trial court was told to review "new evidence" with the intent of determining if Theresa would have changed her mind in light it (new therapies, etc.), whether sticking to the original judgement was just. The judge ruled that there was not sufficient evidence to have been convincing.

In Florida, oral statements can and do serve to indicate what a person wants. If Theresa had had a living will, there would not have been an issue at all. But since she didn't, oral statements would have to suffice, and if they were judged not sufficient then she would live regardless of what she may have wanted.

Well, I think you're missing the real import of the Marsden article, the hypocrisy of the so called self labeled moral majority and the leftist Liberals, and how the Judicial has stood up and faired to both.---

On the issue of Terri. my personal understanding is that she was brain dead, as was shown by medical investigations - brain wave activity etc.
evidence the courts used to make their decision.---

She was not like Steven Hawking. ( I would be interested to hear what he has to say about this.)---

On the "Quality of Mercy" I am appalled that she was not given a good shot of morphine and put to rest.---

A person so concerned with her outward appearance that she would starve herself to throw off 100 lbs. and then find herself in the condition she ended up in, I think would wish to move on to the next life.---

I try to imagine what I would do in her situation, if I was trapped, marooned in limbo unable to communicate or interact with the outside world, well bring on the morphine.... put me out of this hell.---

And for those who would subject someone to that kind of prolonged misery...you all can just go to hell. ( . )---

PS Someone may probably forgive you for "You know not what you do."

I guess this'll learn me.

Note to self: leave American Social Issues out of your posts on TCP.

Sorry Michele and Alan. ;)

A Comment: I have two simple questions for you.

1. Where was this great "cloud of witnesses" to Terri's supposed "death wish" before Michael Schiavo "remembered" what they already "knew"?

2. Assuming they do exist, why did it take all these people not weeks, not months, but years to "remember" this?

Regarding the lawyer blog, it would be nice if you could provide a URL. I want some hard, external evidence, beyond your word, about what someone said. (Yes, my standards of evidence are higher than Judge Greer's.)

Augurwell: Again, your assumption is that Michael Schiavo told the truth. You are giving him too much credit. The man lied in his wedding vows, in sworn affidavits and testimony. He swore, before God and man, to "[forsake] all others." He lied. The award money that went into the trust? He swore to the court that he would use it only for her treatment. He lied. Yeah, 20/20 hindsight and all that, but the safer assumption for Terri would have been that Michael Schiavo was lying from the word "go."

Furthermore, why do you insist on making a decision for her (or anyone), based on what you would want? If she was indeed "brain dead," how could she want anything anyway?

Wayne: Or you could think of it as causing a spike in their traffic numbers. ;-)

Augurwell,

///I try to imagine what I would do in her situation, if I was trapped, marooned in limbo unable to communicate or interact with the outside world, well bring on the morphine.... put me out of this hell///-

That's the point, augurwell, if she is truly a brainstem with PVS, she can't perceive that hell you're so worried about. YOU wouldn't do anything, because not only would you not perceive it, there wouldn't be anything there to perceive it. Or remember it. Or experience it in any way. Pick up a medical textbook and look up the term "locked-in". This is a rare brain injury where a person is unable to move, unable to communicate. They can't even move their eyes. But although brain damaged, they remain completely aware. And you know what? If you pull their feeding tube, you'll go to prison. And BTW, no one suggested she was like Stephen Hawking with ALS. Nice strawman.

The point is, there was sufficient evidence in this case to warrant a federal review of the ACTUAL EVIDENCE OF THE CASE, not just the propriety of the legal wranglings. There was disagreement about her medical condition, including by a Nobel-nominated neurologist who spent 9-10 hours with her, watching her behavior in varying situations, vs the 45 minutes the court appointed neurologist spent watching videos of her and reviewing other people's exams. The EMS at the time of her "bulimia- induce arrhythmia" called the police. Not exactly common procedure. There were 89 complaints by Terri of abuse by Michael that to DCFS that were sealed by the court. Conflict of interest in lawyers and judges. Stopped therapy on which a malpractice settlement was based. Diasgreement on her "diagnosis", which was the basis of EVERY court decision.

I say again, I'm only suggesting there be a review. If she was in fact truly PVS, then I do not object to removing the tube because you are not prolonging life but rather prolonging death. But if there was consciousness even to the smallest degree, then this was murder, and I think there was enough disagreement here to suggest that this case should have been thoroughly reviewed from the bottom up.

And further, I would remind everyone here that this is exactly how the Nazis began, until popular sentiment in germany stopped them and they turned their claws elsewhere. They began with the veneer of compassion, ending the "suffering" of those whose quality of life THEY thought was substandard, everyone whose life didn't fit THEIR definition of what was a good quality of life, of what constitued a whole person.

Go back and watch newsreels of the Nazi doctors being interviewed justifying this, they seem sympathetic and compassionate, too.

We follow their path at our peril

Kate Adamson can tell you what being "locked in" is like. She underwent surgery with no anesthetic, because the so-called "professionals" figured she couldn't feel any pain. After all, they didn't hear her scream when they sliced her open.

Well, I think and feel that the right thing was done in Terri's case.... ---

In Japan a Master of Zen my strike a student dead if the Master has, in Zen fashion, found that the student is a hopeless case and needs to move on to the next level or be reconstituted. The student is aware of this potential escape clause before signing on for enlightenment. ----

This happens very rarely and there are provisions in the Japanese court system that hold the Master harmless in such cases after reveiw.----

Now about this guy who stole archived records and destroyed them. The Democrats must have done something bad that they were covering up. I wonder what it could be?---

GES*

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The last line in my post above about stolen and destroyed documents should have read "These Democrats" not "The Democrats"--------------

Global Emergency Service

.|.

Again?!?

I am quite pleased with our judicial system, and I am sometimes in awe of how well our checks and balances work. But I'm frequently disappointed when critics see a case that didn't turn out the way the would like and they try to second guess the fact finders which are sometimes juries, sometimes judges.

Pilgrim complains when someone who has a right to see certain documents takes extra copies and destroys them, and then gets a light sentence. Actual damage done? What's the cost of making a new copies? Consequences if he hadn't been caught? What's the cost of making new copies?

If there was some heinous motive, that's another matter, but that's also a matter for the investigators and finders of fact. Now compare G. Gordon Liddy, who organized a break-in of the Democratic National Headquarters as well as a psychiatrist's office with the clear purpose of spying and theft. I'm sorry, but the comparison is ludicrous.

As to Terri Schiavo, the Judicial System did not say it was okay for her to starve to death. Florida State Law said it. It's just that the entire Judicial System agreed that Florida State Law said it was okay.

As for Pope Jean-Paul II, I would be very interested in knowing the exact details of his death. Why did they not take him back to the hospital? I'll bet anything he died without any tubes in him. I'll bet that when he fell unconscious for the last time, nobody tried to stick tubes in him and try to revive him at any cost.

And whatever happened at the autopsy of Terri Schiavo? Anyone know?

James: You conveniently omit one crucial point. Liddy got 4 years for B&E. Sandy Burglar got a $10K fine for destroying documents that required a Top Secret clearance or better to view, documents that should never have been removed from their room in the National Archives. Documents having a direct connection to our national security. So this pathetic loser gets away with something that Liddy could only have aspired to.

..I too ponder the judicial system..where are the checks and balances for the judges, are they above scrutiny,one branch can over rule the other two with impunity..one things for certain its going to get interesting...

James -

I have to wonder about something...how did you feel about the 2000 Election fiasco in Florida? How the Supremes overruled the Florida Supremes?

What I am wondering about you knee-jerk types that are sour that you werent able to butt your noses into to the Schiavo's business, is this:

Do you think that the judicial system has just been missing while this country grew into the greatest system of government yet seen by humankind?

Has the whole independent judiciary concept just sprung into being in the last 5 years?

Is your righteous indignation at NOT having a stranglehold on one of the 3 branches of goverment a bit overdone?

Does the concept of judges that are not beholden politically to the religious right keep you awake at night?

Dave - I pose the same question to you as James...how did you feel about the 2000 election and the Fed Supremes v Florida Supremes?

To answer you questions...no. I don't lose sleep over this. The fact that we have a runaway judiciary doesn't really bother me in the final analysis. It bothers me for the sake of the Country but it won't effect me when the excrement hits the atmospheric circulator.

Jefferson, a friend to the modern liberal, said, "The tree of liberty must be refreshed from time to time with
the blood of patriots and tyrants." The more insane our judiciary becomes the closer we get to something VERY ugly.

I love it when I hear veiled threats against judges like that. It really lets people know how far from the pack you've strayed.

The judicial system is the best thing we have to prevent congressional and presidential zealots from doing stupid things. Its called checks and balances.

Quis custodiet ipsos custodes, dave? If judges are the check on the President and the Congress, who checks the judges?

Currently, no one does, and so they can do pretty much whatever they feel like. Well, some of us think that is wrong.

Dave -

Who's threatening? I was simply pointing out that we Americans have a tendency for throwing hissy fits when we feel someone is outta control. In fact an argument could be made that every war leading up to the Spanish American war was brought about by Americans of one political bent or another saying "Hell NO!".

As for the pack...I just don't care. Ya know what worrying about the pack gets you? Surrounded by dogs. I follow where my principles lead me.

..Schivao case..will be a rallying cry Dave but not to the tune you think..it takes the majority a while to react..and I `ll go with history..we usually get it right.. this goes so much deeper than this one case..the list is long..its the passion that makes it all work..

Rob_NC: were you high when you wrote that? Your "sentences" make no sense.

Gabriel: The judges were appointed by the president and congress, and they can be impeached if they actually break any laws.

The rest: If you cant see through all this rhetoric as just empty pandering to the GOP base then you need to remove the blinders. Dont take it from me, go read other actual conservative thinkers like Instapundit.

So, um.. dave...

Who decides when a judge has broken a law?

Where, in the Constitution, are judges given the power to use the laws of Jamaica and Zimbabwe in determining whether or not capital punishment for juveniles is unconstitutional?

Where, in the Constitution, is the Supreme Court granted the power to interpret the Constitution at all? And if such a clause exists, is there a further clause that permits the Supreme Court to use Zimbabwean law, rather than American laws, to interpret the Constitution?

Is it not true that Article 3, Section2, of the Constitution give Congress the power to decide what cases the Supreme Court may or may not hear?

"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."

dave, it is clear from your posts that not only have you no answers for these questions, but it has never occured to you ever to ask them.

PS dave: Instapundit is not a conservative. He is a libertarian. As am I.

As for "how did you feel about the 2000 election and the Fed Supremes v Florida Supremes?", I have a mildly bad taste about it. I haven't analyzed the details, so I don't know much about the particulars, but it felt alot like the Fed Supremes went out of the normal process to produce that result. But again, I haven't done the analysis.



To Gabriel, I don't know the details about why the Judges have the power to interpret the Constitution, but the fact is that this power was recognized and accepted very early, and has held this country in good stead for a long time.



The justices are expected to use their brains when interpretting the constitution. There's nothing which says that they have to make decisions in a vacuum. I don't have a problem when a justice recognizes that there is a world out there. I hear some of those foreigners actually have ideas.



Who decides when a Fed. Judge has broken a law? I think that would be Congress.



As for Article 3, Section2, I missed your point. I assume that the quote you gave is in fact Article 3, Section2, and it mentions only the Supreme Court. That section is an example of the checks and balances, and so I'm not sure what point you are making with it.



And finally, since when are libertarianism and conservatism mutually exclusive?

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."

Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823

,,knock,knock..
..who is it..
..its Dave..
..
..
..
..Dave aint here..

oooo, quoting a politician. how bout this one: "The bitch set me up!" Marian Barry, some time in the 90s.

Your cheech and chong reference only confirmed my suspicions. =)

Gabriel, Im not a lawyer and I am guessing neither are you, so lets debate ideas and not legal technicalities. I am guessing you're not because every lawyer I've talked to knows this GOP offensive is just pure scapegoating to distract the base.

dave, it is a free country and when you are unable to answer simple questions you can retreat into ad hominem smears if you like, cribbed from statements you don't quote from lawyers you don't name; just don't be surprised when no one takes you seriously.

If you think the Constitution is whatever the Supreme Court says it means this week, fine. Just don't be surprised if some of your fellow citizens don't want to go along, and expect you to defend the position you take instead of spouting off about "the conservative base" and the "lawyers I've talked to".

The point of quoting Article 3 Section 2 is to prove that the Supreme Court does NOT have the final say on how to interpret the laws, because Congress is EXPLICITLY given the right to limit or regulate the jurisdiction of the Supreme Court.

Unless, of course, the Court should decide that, since the Constitution is a "living document" Article 3 Section 2 doesn't mean what it says it means.

The Court has no powers to compel obedience. The President has armed forces, Congress has the authority to tax and spend. Courts do not have these things. We obey them because we think we ought to. If the Supreme Court wishes to make a mockery of our Constitution by deciding we shouldbe governmed by the laws of Zimbabwe rather than the laws We the People enact, then they will find that We the People cease to consider them legitimate. And the consequences that will follow will be dreadful. So i hope the Court will restrain itself.

Attack of the Gangliacons .......................... Rachel Marsden

has a new name for the members of the extreme-right who have been bombarding her with hate mail as a result of her Schiavo column: Gangliacons. All nerve, no brain..................................................................................................These are the folks who went so far off the deep end in the Schiavo case that they came up on the other side of the ideological pool and found themselves splashing around next to Jessuh “uh-uh” Jackson. Fox News’ Bill O’Reilly called it a sign of the Apocalypse; I call it a reality check on both one’s sanity and level of employment. Here I thought that conservatives, unlike trust fund liberals, had jobs to go to during the day..........If you're interested in finding out the fate of Tom Delay and how the Vice President has torn him a new one, you may follow this link http://www.rachelmarsden.com/columns/gangliacons.htm

American Law is at the leading edge of legal evolution having grown from what works, surviving from conventions such as the Magna Carta Britannia and maintained being part of the system of checks and balances of the Constitution. Right on center.|.Every time this kind of wrangling comes up my admeration for the Founding Fathers and native sons and daughters grows.|.

I don't know that I would throw around accusations of strange bedfellows too liberally, augurwell, if I were you, since you found yourself smearing suntan oil on Nancy Pelosi, Barbara Boxer, and Ted Kennedy.

Johnny -

Here's a hearty ANTI-thank you for that mental image....

augurwell: Rachel Marsden was doing cartwheels when Terri Schindler died. If she thinks it's so wonderful, she can be next. Otherwise, she's just another hypocritical toadie of the Deathocrats.

Well, we disagree. I support George Bush, Tony Blair, Joe Liberian, John Howard,
Winston Churchill, Franklin Roosevelt. I don't support losers.

Gabriel,

Care to comment on Marbury vs Madison? Or are we straying out past your talking points?

And nor do I support Jessuh uh uh Jackson, augurwell. That was your point, was it not? That because we supported a federal review for the Schiavo case, that we found ourselves in the untoward position of being "so far off the deep end" as to be on the same side as Jackson. Well, so did you. Look up Kennedy's or Pelosi's quotes on the matter if you don't believe me. You can't "disagree" your way out of the point that you made. Turnabout is fair play.

dave, you're not very good at following an argument are you?

When I asked you, "where in the Constitution is the Supreme Court given the power of judicial review", that was a reference to Marbury vs Madison.

The Supreme Court is not given the power of judicial review in the Constitution. They invented it for themselves in Marbury vs Madison, and their distortions of the plain meaning of the Constitution, and their inventions from whole cloth of things not found in it, have all stemmed from that first act of usurpation. There have been times when they used it wisely and well, but that is not a justification, any more than a wise and just dictator justifies dictatorship. The problem with dictatorship is that an unwise and unjust person has great power to do harm. The problem with the Supreme Court usurping powers that were not granted to them is that they will have no check on this power if they should choose to do harm with it.

But you, dave, are so busy accusing me of working from "talking points"--implicitly accusing me of of taking direction from someone else--that you can't be bothered to look anything up or pay attention to anything I actually say. So you go right on thinking that Karl Rove has the remote for my shock collar. The people who read this site regularly know who I am and what philosophy informs my opinions. You can try argument ad hominem all you like, but it reflects on you, not on me.

Gabriel,



You say your point was to prove "the Supreme Court does NOT have the final say on how to interpret the laws." Clearly that's wrong. No-one has the authority to overturn the Supreme Court's interpretation.



"The problem with the Supreme Court usurping powers that were not granted to them is that they will have no check on this power if they should choose to do harm with it." Well guess what? They have already abused this power, but low and behold, checks and balances kicked in and things got fixed. You see, not only does Congress have the power to limit jurisdiction (as opposed to interpretation) of the Supreme Court (which power seems completely irrelevant in this discussion), Congress also has the power to change the laws, and when necessary, the Constitution. Let's all say it together: "Dred Scott".



So now I've lost track. Exactly what is wrong with the judiciary besides having judges who don't think exactly like you? And what would you suggest to fix it?

James, I'm not sure that you don't have some issues with reading comprehension. You say, "No-one has the authority to overturn the Supreme Court's interpretation." Says who? The Constitution, which I quoted, clearly says Congress has that right. You however, don't quote anything from the Constitution and merely repeat your assertion. Because you don't know how to read, it is a waste of time to quote it again, but here goes:

Article III, Section 2: "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."

Andf there is not one word in the Constitution about the Supreme Court having the ability to define what the Constitution means. Not one. You say it's so important, so much more so than the ability to limit and regulate jurisdiction (not that you can explain why you think that is a different power from interpretation). But, if that's the case, then why is one left out and the other put in? It is because judicial review is a power the Supreme Court just made up, that is why, and we all let them... So strike one for you, James: you show an inability to understand written English, I guess, The difference between you and a Supreme Court Justice is that they do it on purpose, but you can't help it.

So, the next idiocy you spout is "checks and balances". Right, but you don't say what they are or how they are supposed to work if the Constittution means whatever the Supreme Court says it means or what, exactly, they accomplished when it came to "Dred Scott". Because, as I recall, there was a big goddamed war that settled the "Dred Scott" case and hundreds of thousands of Americans died in it. Is that what what you meant by "checks and balnces kicked in"? If the Court does something people don't like they can call out the troops to settle it?

Whatever. The point is, apparently you think it is coll that the Supreme Court made up a power that they were not Constitutionally given and then use it to impose laws from places like Zimbabwe and Jamiaca and make up rights and interpretations that were never intended by the people who wrote the laws and voted on them. After two or three more Republican presidents, James, what kinds of "interpretations" do you think the Supreme Court is going to be handing down? Your lazy butt is in this too. And what if one day the majority of Americans are Muslim and there are nine Muslim justices who decide that the Constitution really means sharia, because "our standards have evolved"?

What do I want? I want Justices who interpret the laws according to the sense of the people who wrote them, not according to what nine men and women think those laws ought to be. We have a Congress for making laws. You disagree, fine. Just don't expect to sway anyone with unsupported assertions.

From James Lileks' Newhouse column:

Creeping theocracy watch, continued: A court has ruled that a fashion company can't run ads that make fun of the Last Supper. To be specific: They can't make fun of a painting done 1,500 years after the event. Pretentious denim-vendors Girbaud parodied Leonardo DaVinci's famous painting; bishops complained, and the government banned the ad. Typical for Red-State-Uber-Alles Amerika, eh?

But this happened in France. Yes, it's Europe that has blasphemy laws -- secular, post-Christianity Europe, come-for-the-cathedrals-and-stay-for-the-hash-cafe Europe. The ruling came from a French court in response to a case brought by a group of French bishops....

If Europe starts to enforce blasphemy laws, ought not the United States do the same? A recent Entertainment Weekly had film director Morgan Spurlock of "Super Size Me" fame in a crucifixion posture, burgers in each outstretched hand, bloody ketchup trickling from his palms. Stupid, yes. Clueless. But should it be outlawed?

Of course not. Government can't hurl fatwas from the bench, even if some moronic ad agency uses a marshmallow chicken rolling back the stone on Easter morn to sell Peeps. What's more, the ad industry in America is inexplicably smart enough not to cross that line. But even if Madison Avenue completely lost its bearings and started spoofing the Gospels to move pop or widescreen TVs, most wouldn't clamor for laws to stop them. That's what they do in Iran. Or Saudi Arabia. Or France.

But wait a minute. Hold on. If other nations have blasphemy laws, well, shouldn't we? After all, the Supreme Court did a hat tip to foreign law when deciding that juvie murderers should not ride Old Sparky down to their reward. If other nations forbid such things, ought we not pay heed? In for a penny, in for a euro, after all.

Well, no. One suspects that the possible downsides don't bother those who want U.S. courts to follow international "trends." No, our wise, robed solons will inspect the rich buffet of international precedents and select the "proper" laws.

But the supporters of the international voice might consider the wisdom of letting them dang fur'nurs have a voice in our courts. We're constantly told that the United States is about one public prayer away from being a full-blown theocracy, after all; if the neo-con project to revoke the Constitution and install George W. Bush as the first God-ordered Boy-King is successful, do they want the courts finding precedents in backwater Pakistani courts that mandate the death penalty for rape victims on religious grounds?

Not that they would. Believing in the Constitution as the final word, not some vast, amorphous, wobbly blob of international law, is becoming a "conservative" position, and it's unlikely we'll see Bush float judges who want to bend U.S. law to fit the whims of Canada or Belgium.

Import French jeans, if you want. But leave their laws at the dock.

Gabriel, the authors of the Constitution were not perfect. They failed to mention what should happen when Congress passes a law which conflicts with the Constitution, so the Supreme Court made up this power in Marbury v. Madison. They've had this power for two hundred years, and nobody has thought to change it, probably because nobody has a better plan. If you don't think they should have that power, then what do you think should happen when Congress passes a law declaring the Christian Science church as the official religion of the U.S.? Really, I want to know? (And for the sake of argument, let's assume the president says "Woohoo" in response.) As for Dred Scott, the case was not settled by the war, except to the extent that after the war, those left in power were inclined to take action. And take action is what they did. The Dred Scott Supreme Court had said that, by its interpretation of the Constitution, blacks were not people. Congress CHECKed that decision by CHANGING THE CONSTITUTION. See the Thirteenth, Fourteenth, and Fifteenth Amendments. Finally, I thought you were against "ad hominem smears", and yet you call into question my reading comprehension and state that I spout idiocy. Hmm.

1: Changing the Constitution requires a two-thirds majority of both houses, the consent of three-fourths of state legislatures, etc, according to the Constitution.

But the Supreme Court, according to your argument, has the right to change it at any time in any way they want with no one's consent. And the rest of us, if we want to change it back, have to go through some drawn-out process that doesn't work without a huge supermajority in favor. So what you are saying is that, if a significant minority of people supports a Constitutional change made by the Supreme Court than they have the de facto right to have the Constitution their way without going through any of the amendment processes that they ordinarily would have to. You're cool with that because the wind blows your way now. Certainly some sort of provision for the review of the Constitutionality of a law should be in the Constitution. You think it should be the sole prerogative of the judiciary. I think that the Congress and the President each should have equal power in interpreting the Constitution. Nine unelected men and women should NOT have the final say. You disagree, okay. 2. You asked me what I would do "when Congress passes a law declaring the Christian Science church as the official religion of the U.S?" I asked you, what would YOU do if a Supreme Court with 5 Muslims, in a majority Muslim US, ruled that "evolving standards of decency" means that the Constitution is now to be interpreted in the light of sharia law. YOU didn't answer. My answer is the same for both questions--it should not be solely up to one branch of the government to determine how to interpret the Constitution. ALL branches are responsible, and the President explicitly swears an oath to protect the Consitution. 3.) Saying you "spout idiocy" and "have reading comprehension problems" is not ad hominem argument. You, however, being too stupid to know the difference, don't understand this. I judge your intelligence and your reading comprehension solely by what you have posted to this argument. My judgement of your idiocy and lack of reading comprehension is not based on who you are but on what you said here. If I had said, "don't listen to James' argumenes about the Constitution because he is a liberal" that WOULD be an ad hominem argument. What dave said WAS an ad hominem argument: "Gabriel, Im not a lawyer and I am guessing neither are you, so lets debate ideas and not legal technicalities. I am guessing you're not because every lawyer I've talked to knows this GOP offensive is just pure scapegoating to distract the base." You see, he says that Republicans' opinions are not worth considering BECAUSE THEY ARE REPUBLICANS, not because of the merits of the argument (he never addresses them). Additionally he attempts to appeal to authority instead of actually arguing, which is not a fallacy if you quote named experts whose credentials can be examined--which dave does not bother to do--they're just "lawyers he talked to". In summary, if you weren't an idiot you would know the difference between argument ad hominem and abusive, though justified, criticism. I accuse you of not having given this matter any thought at all, and my accusation is based solely on how badly you've written about it, not on who you voted for in 2004. I chose to be unnecessarily rude about it, but it's not ad hominem.
4.) While you're at it, answer my question about Muslim justices, since I answered yours. Bear in mind that I posit a US with a Muslim populations so large that a Constitutional amendment perceived to be against Islam would not pass. While you're at it, do explain why the US shouldn't start enforcing European-style blasphemy laws, since you think it's cool that the Supreme Court interprets our laws in the light of laws from Zimbabwe and Jamaica.

Folks -

A couple things...

1) Gabriel - seperate the paragraphs in your comments with the [less than symbol] p [great than symbol] tag. Makes things much more readable.

2) Everyone - the discussion is good but please try and keep things civil. It's an emotional topic for all of us but please try and keep the veiled slaps and not so veiled slaps out of your comments. As my mother always told me...with a relevant twist..."I posted this article...I can always take it down". ;)

Yes...I know...we're all guilty of overstepping the editorial rules in this piece it just seems that things may be coming to a head and I just wanted to remind everyone...including myself.

Wayne, while we're talking about user friendliness, how about this

:

Any word on not having to sign in to Typekey 4 times before it lets you in?

Or how about this? How about being able to make a bold or italic word without everyone screaming at the top of their lungs for the rest of the thread? I saw someone do it the other day. Any idea how?

manipulating posts isn't intuitive like it used to be

Dunno about the bold thing. I know that you can close a bold section by using the [gt]/strong[lt]. We'll see if that works.

As for the typekey thing I don't know what's going on. It's been this way for quite a long time. I log in once, get the error, hit the BACK button and get returned to TCP ready to make my comment.

Darn, and I was just about to say something mean. Ah well.

Re: Our respective thought experiments, I did not ask what you would do. I asked what you would think should happen. So now I will try to answer both your and my questions for each scenario.

Here's what I think should happen if Congress declares the Church of Scientology to be the official Church of the U.S.: Eventually someone will sue the Government and the Court will declare the law unconstitutional and unenforcable (assuming there was something to enforce).

Now if Congress and the President have equal power to interpret the Constitution with the Court, then no-one has any meaningful power to interpret the Constitution. In this case, the Constitution can be safely ignored. Thus, what I expect to happen is some portion of my taxes will end up going to the Church of Scientology. What would I do? I would support a Constitutional amendment to specify that the Court has the sole right to interpret the Constitution.

Now to your thought experiment regarding a complete change in the population of the United States such that a majority of the Court and the population are Muslim, that's a little tricky. What do I expect to happen? If everyone want sharia, we'll have sharia. What would I do? Given such a complete change in the population, I might want to move. Depends on whether there is some place in the world I like better.

Okay, your turn. What do you think SHOULD HAPPEN if Congress passes a law adopting the Church of Scientology as the official Church of the U.S., and the President then proposes a budget including a slight tax increase with proceeds going to said Church, which budget is adopted/enacted by Congress?

Re: ad hominem -- I'm not sure I used it wrong, but Wayne just made my point so who cares. Your attitude does not make your argument more persuasive.

Maybe it's the redneck in me but...if the Government actually got that far without stirring up a Hornet's Nest of revolt I would simply retire back to the hills and live my life as I see fit.

That's the thing I think alot of Americans and most if not all the Europeans have forgotten. WE are the government in America and when our elected representatives get stupid it is OUR DUTY to stop them. If we find ourselves in the minority we have some options...leave or stick around and ignore the government. It is doable. My ancestors did it for 150 years before there was a United States. I'm reasonably sure I could do it again.

If everyone want sharia, we'll have sharia.

No, we won't. This is exactly what out forefathers sought to avoid, James. It shouldn't ever get to the point where it could. It troubles me that you and dave don't seem to understand this. I don't see why you seem to be having so much trouble distinguishing a democracy, which we are not, with a constitutional republic, which is what we are. The Founders did not want two wolves and a lamb deciding what to have for dinner. (apologies to Torpedo 8) This is what checks and balances are for and why they were instituted by the Framers.

johnnymozart: I second your statement absolutely--fundamentally this is what I am talking about. Neither do I want to see one black-robed wolf telling the wolves they can eat sheep for dinner.

Wayne Fielder: You are right to call me on my uncivility in this thread. It was quite deliberate on my part, and not at all justified.

James: In your picture the Supreme Court has the Last Word. If the Supreme Court is rigged or corrupt or is dominated by a faction significant enought that no supermajority exists to Constitutionally overrule it, your prescription is "move". Me and johnnymozart would add "take up arms"... Either way this is unsatisfactory to me and johnnymozart. As Machiavelli says, if there exists no peaceful way of resolving the grievance then violence is inevitable. I will not see it happen again to my Republic.

You brought up Dred Scott. What happened? The Supreme Court had the Last Word. You say then, that Congress passed an amendment: "checks and balances", right? But you forgot to mention that in between those events there was a huge war. When those in favor of slavery were dead on the field, or had their voting rights stripped from them in the Reconstruction, ONLY THEN could the necessary supermajority to abolish slavery exist: BY KILLING THE MINORITY AND STRIPPING IT OF ITS RIGHTS. This is what happens when you let the Supreme Court, or anyone else, have the Last Word. The slavery supporters were the minority. The Supreme Court interpreted the Constitution in the way that benefited the minority. The Constitution COULD NOT BE CHANGED because the minority was too big. The majority eventually found the situation intolerable and the Civil War was the result.

If the Supreme Court is free to define the Constitution as it wishes this will happen again. Some minority will want something that the majority finds intolerable. Abortion wasn't it, consensual sodomy wasn't it, gay marriage won't be it and neither will polygamy. But perhaps there may be a "straw that breaks the camel's back". You, James, have clearly not thought this through or you would not have used Dred Scott as an example of checks and balances working. It took ten years and hundreds of thousands of deaths to undo "Dred Scott", not a simple vote, James. Do you see now why I was so insulting to you?

All branches must decide the Constitutionality of the actions of itself and the other two. Congress should censure, impeach, or refuse to pay for any unConstitutional acts of the President, and should pass laws to limit the interpretations of the Supreme Court if the Supreme Court distorts the meaning of the Constitution. The President should refuse to sign unConstitutional legislation and refuse to enforce any law that is un Constitutional, and he should ignore any unConstitutional decisions of the Supreme Court. And the Supreme Court should continue to do what it does--but neither it, nor any other branch, should not have the Last Word. There will be times when the branches will say different things. They will work out some kind of compromise. There is a precedent for this: Andrew Jackson once said "Let the Court enforce its decision if it can." And he was right to do so. The Court, by the Constitution, is not entitled to the Last Word.

There must always be a peaceful and legitimate way to redress the grievance, or violent and illegitimate methods WILL be used.

Okay, your turn. What do you think SHOULD HAPPEN if Congress passes a law adopting the Church of Scientology as the official Church of the U.S., and the President then proposes a budget including a slight tax increase with proceeds going to said Church, which budget is adopted/enacted by Congress?

If 250 million people in this country want sharia, they'll get sharia by changing the Constitution. Nothing we can do about that.

I admit, changing the Const. is the hard road. But if people care, it will happen. Dred Scott is an example of the extreme case. The most important checks/balances are at the beginning of the process. My point is, even when the Court does something really bad, that's not the end of it. There is no Last Word.

And please don't forget that the Nine weren't simply picked up off the street. The danger that you fear is why choosing Justices is such a big deal. In fact it's such a big deal that we even let the minority have a veto. Well, unless the Republicans change that, in which case getting a wacko into the court is more likely. No, not because it might be a Republican wacko, but because fewer people will be providing the advice and consent. This is especially true when the Pres. and the Congress majority are on the same side.

Okay, James, just ignore every point I've made, make up an argument and attribute it to me, and then argue with that. What are you, in sixth grade? Is it so hard for you to understand what I've said, or are you not reading my posts at all? OBVIOUSLY if all Americans want sharia they will get it and we will cease to be a democracy. However, I WASN'T TALKING ABOUT THAT.

This is why I insulted your reading comprehension skills. Let me repeat it again, slowly, in words of one syllable:

In my hypothetical case, MUSLIMS ARE NOT A MAJORITY OF THE POPULATION. However, Muslim justices are A MAJORITY OF THE SUPREME COURT. By your own theory of who has the power to interpret the Constitution, the Supreme Court could impose sharia on the NON-MUSLIM majority. Then, according to your theory, the rest of us can try to pass a Constitutional amendment. However, the MINORITY of Muslims is big enough that you cannot get the SUPERMAJORITY required to pass the Amendment. According to your theory, we then just have to move if we don't like it. YOU HAVE NO ANSWER TO THIS ARGUMENT IN ANYTHING YOU'VE POSTED SO FAR.

So do explain, in your theory of who gets to interpret the Constitution, how you will preserve constitutional representative democracy in that kind of circumstance?

No, Justices are not "picked up off the street". And the filibuster you so admire is NOT IN THE CONSTITUTION and does not constitute a Constitutional protection for minorities. It can be changed at the will of the Senate, today, tomorrow, and could have been done at any time. Likewise, the power of Supreme Court judicial review is NOT in the Constitution. Haven't you realized this is why Supreme Court confirmation fights are so bitter? Whoever controls the Court controls the Constitution, for possibly decades! Do you think that is the way things ought to be?

Likewise, I already answered your hypothetical about the establishment of the Church of Scientology. If Congress and the President are in cahoots to establish a church, how does the power of judical review help the Supreme Court? The Supreme Court would just be ignored then, whether or not they have the Constitutional power of the Last Word. A President and Congress in collusion to overthrow the Constitution cannot be stopped from doing so. A Supreme Court that distorts the Constitution at will has no armies to command and no power to tax, and is easily thwarted by the other two branches IF THEY HAVE THE WILL. They currently do not, despite the powers explicitly granted to them to do so--and that will is sapped by people like you, James, who worship the Court as some sort of oligarchy of Solons.

The majority of Americans believe that Americans ought to be governed by American laws and the Constitution interpreted by American lights. A majority of the Supreme Court disagrees. We face that hypothetical situation I already mentioned right now.

You also never answered my question about European -style blasphemy laws. Shouldn't the Supreme Court enforce them? They decided that juvenile executions were unConstitutional based in part on European laws and the "evolving consensus", right? So ought they not to enforce blasphemy laws? If the Constitution is to be interpreted in the light of international law, where is your leg to satnd on, James? you mmay say, "yeah, but they won't". What stops them, James, if your theory of the Supreme Court's Last Word is the way it ought to be?

Here it's all spelled out, James:

http://www.weeklystandard.com/Content/Public/Articles/000/000/005/504hndlw.asp?pg=1

"...Power Line sent one of our East Coast correspondents to sit in on the discussion. The conversation left no doubt about the "rights" that, according to these eminent liberals, should be constitutionally enshrined by the year 2020.

The touchstone is Franklin Roosevelt's "Second Bill of Rights," which would recognize a right to "a useful and remunerative job"; sufficient earnings to provide "adequate" food, clothing, and recreation; a "decent" home; a "good education"; and "adequate medical care and the opportunity to achieve and enjoy good health."

The essence of the progressive constitutional project is to recognize "positive" rights, not just "negative" rights, so that citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits. The bottom line is that Congress would no longer have the discretion to decline to enact liberal policies. The triumph of the left would be constitutionally mandated....

"
"...The left makes no secret of its intentions where the Constitution is concerned. It wants to change it, in ways that have nothing to do with what the document actually says. It wants the Constitution to enshrine its own policy preferences--thus freeing it from the tiresome necessity of winning elections. And how will the Constitution be changed? Through a constitutional convention, or a vote of two-thirds of the state legislatures? Of course not. The whole problem, from the liberal perspective, is that they can't get democratically elected bodies to enact their agenda. As one of the Yale conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?" The new, improved Constitution will come about through judicial re-interpretation. It only awaits, perhaps, the election of the next Democratic president.

If the idea of a Constitutional right to government-funded child care, "adequate" recreation, and $80,000 in cash seems outlandish, remember that these concepts are no more eccentric than the idea of a right to abortion was, prior to Roe v. Wade. As a law school exercise in 1972, my class was charged with trying to formulate an argument for a constitutional right to abortion. We were stumped. None of us could think of one. A few months later, the "right" to abortion was born..."

These people at this conference are LAWYERS, describing what they want courts to do in the next 20 years. Maybe you think, James, that Americans should have all these new rights--but if that's the case, you know perfectly well that you are obligated to find the necessary supermajority to change the Constitution. It is illegitimate for courts to create these rights by their power to "interpret" the Constitution, and you know that perfectly well too. You know it would be wrong and unfair. But you'll still defend the courts' supposed powers to do so, because to you judicial supremacy is an end in itself, it is not a safeguard for the rule of law. If the law means one thing when it is written, and then judges later decide that they think it ought to mean something else and therefore it DOES mean something else, because they have this power, then what becomes of the rule of law, James?

Gabriel, my reading comprehension seems to be better than your memory. Let me cut and paste your original statement of the problem: "And what if one day the majority of Americans are Muslim and there are nine Muslim justices who decide that the Constitution really means sharia." Thank you for changing the scenario and restating the question. Here's are my new answers:

What I would expect to happen: if any Court decision clearly defies a reasonable interpretation of the Constitution (for example, by establishing religion, as might be the case if sharia is arbitrarily imposed by the court), I would expect Congress to impeach those judges participating in such a decision and remove them if they are found guilty. What I would do: vote for Congressmen so inclined.

I'm sorry I cannot find your answer to my question anywhere. I asked a question of the form "What should happen if the case is X", and I was expecting an answer analogous to "If X, then Y should happen." In the spirit you have shown, I will restate the question. The beginning part is the same, but I will paraphrase: A majority of both Houses of Congress and the presidency are controlled by the same party. Congress then passes laws which probably go against the Constitution, with the support of the President. Now lets consider this scenario in two contexts: 1. Court has power of judicial review(recognized by president and congress, but not explicit in the Constitution).
2. Court does not have power of judicial review.

The first context has been the situation since Marbury. The second context seems to be the situation you would prefer. So please answer: What should happen if given the scenario in context 2. Please note that I would prefer an answer in the form "Given the scenario and context 2 (no power of judicial review), this is what should happen:X". Also note that "X" should be a description of events.

I hope you will forgive me for anticipating your answer. I can't see how you will provide an answer that does not suggest a major breakdown in the Rule of Law and/or possible violence. If I am mistaken, I look forward to enlightenment. Otherwise, I must suggest that any reasonable person should prefer context 1 (which leads to the status quo, which isn't perfect, but is pretty good overall) over context 2.

Gabriel, I do not worship the Court. I admire the system and recognize its incredible effectiveness and utility. I admit (again) the system is not perfect. For example, I have strong reservations about the discovered "Right to privacy" which theoretically supported the Roe v. Wade decision. I will not be appalled if that decision gets overturned. But I am not concerned that the Court is out of control. As I've shown, I think there is plenty of control over the court, even if it's not in the Constitution.

I am a little concerned that you, Gabriel, worship the Constitution. Much of your rhetoric suggests that you wish for one nation, under the Constitution, by and for the Constitution. The Constitution is great, but it's not the be all end all. It doesn't contain every good idea ever conceived. And if we were to require any good idea to be in the Constitution before we practice it, then we'd be in a sorry state indeed. The filibuster is a bizarre, weird-ass back door idea, but it is probably a good idea because it keeps the majority from getting out of control. But like you said, it's not in the Constitution, so it's easy to change. The people will judge the wisdom of such a change, if it happens.

And yes, influencing judiciary is a viable method for advancing an ideology. Are suggesting that those Democrat lawyers are doing anything that the Republicans haven't been doing for a long time?

1: So, James, you think Congress has the right to impeach Justices for their considered legal opinions? Impeachment is for the commission of actual crimes, James. If you support the impeachment of judges who would interpret the Constitution in light of sharia, then you must also support the impeachment of judges who would interpret the Constitution in light of the laws of Jamaica or Zimbabwe. Do you?

2. Reading comprehension is clearly still an issue for you. Here are my two answers to your question, which you will find posted above:

"Congress should censure, impeach, or refuse to pay for any unConstitutional acts of the President, and should pass laws to limit the interpretations of the Supreme Court if the Supreme Court distorts the meaning of the Constitution. The President should refuse to sign unConstitutional legislation and refuse to enforce any law that is un Constitutional, and he should ignore any unConstitutional decisions of the Supreme Court. And the Supreme Court should continue to do what it does--but neither it, nor any other branch, should not have the Last Word. There will be times when the branches will say different things. They will work out some kind of compromise."

"If Congress and the President are in cahoots to establish a church, how does the power of judical review help the Supreme Court? The Supreme Court would just be ignored then, whether or not they have the Constitutional power of the Last Word. A President and Congress in collusion to overthrow the Constitution cannot be stopped from doing so."

This answers both your original question and your restatement. Congress can tax, the President can command armies, the Supreme Court can talk. If Congress and the President--who are elected officials and reflect to some extent the mood of the majority--want to throw out the Constitution then the Court cannot stop them. Your hypothetical case reduces to triviality, just like your hypothetical 300 million American Muslims--i.e., every American--who want sharia.

3)Your other reading comprehension problem is when you attribute this opinion to me:

"The second context [court does not have power of judicial review] seems to be the situation you would prefer."

You will find nowhere in anything I have posted that says or implies this. Your failure to understand what you read causes you to attribute it to me. It is spelled out above:

"..the Supreme Court should continue to do what it does--but neither it, nor any other branch, should have the Last Word."

Let me say more clearly then. The Supreme Court should have an explicit power of judicial review, Constitutionally prescribed and circumscribed to limit possibilities of abuse, and the other branches should also have analogous powers explicitly prescribed and circumscribed. This would require a Constitutional amendment, except for the Congress's right to limit the jurisdiction of the Court, which is already in the Constitution.

4) Do I worship the Constitution? Yes and no. I do not worship what the Constitution SAYS. After all, it explicitly permitted slavery once. I worship, if you like, the PROCESS and the PRINCIPLE; that we have a fundamental document that prescribes how our government shall behave and what forms it may legitimately take, and that means are also precribed by which to peacefully change this fundamental document.

This is why I hate the current situation with the Court. if the Constitution has no meaning other than what nine justices say it means at any given time--which is in fact what you advocate, James--then both the principle and the process of the Constitution are violated and we live under a sort of weird and bureaucratic judicial tyranny, albeit an ineffective one with the best of intentions.

So, my prescription: keep the Court's power but make it explicit so as to be circumscribed, and explicitly allow and encourage the other two branches to have analogous powers to interpret the Constitution. This will put judges back in their proper sphere and remove the partisan strife about confirmations. If people are so utterly determined to destroy the Constitution that they elect a President and Congress willing to do it, they cannot be prevented from doing so, but we can keep the Court at least from accomplishing it on their own initiative.

5) The filibuster in its current form has existed only for thirty years. Before President Wilson there was no cloture at all. Then the cloture rule required a 2/3 majority. Thirty years ago Robert Byrd sponsored the change to a 3/5 majority, because he thought 2/3 would lead to minority obstructionism.

The filibuster has only one time before Bush's Adminstration been used to block an up-or-down vote on a judge passed by the Judiciary Committee and I do not believe it has ever been used to block an up-or-down vote judge that had majority support. So your idea that the filibuster protects minorities from judical tyranny is void, because it has never, until now, been used for that purpose.

Gabriel, you should at least Google before you post. That and try wikipedia. That's how I got Marsbury and Dred Scot.

1. Congress has impeached judges several times. See http://air.fjc.gov/history/topics/topics_ji_bdy.html. Or just google "Impeachment of Federal Judges.

2. I see you have chosen the "I already answered" option. Too bad. Your answers are what we call "non-responsive". I asked a question of the form "What happens if X?" and your answer is of the form "X shouldn't happen".

3. What you propose makes little sense, but it gives this great image of the exchange between Congress and the Court: "You're not Constitutional!", "No, YOU're not Constitutional!!", "NO, YOU're not Constitutional", "AM TOO", "ARE NOT". (Sorry for making light).

4. see 3

5. A check or balance that has never been used is still a check or balance. Consider "Mutually Assured Destruction". Actually, I recently read an opinion that suggests democrats should not oppose the end of the filibuster because it is a tool more often used by conservatives. Conservatives usually want to stop government from doing something whereas liberals are usually the ones trying to get the government to do more. Nevertheless, I kinda like the idea of keeping some power in the minority. Power corrupts, but absolute power corrupts absolutely. Best to keep it spread around.

This is my last post on the subject. You get the last word, Gabriel.

Gabriel, I will apologize in advance for the interruption of your beating of James

From's James' link:

-mental instability and intoxication on the bench; -arbitrary and oppressive conduct of trials
-charges of refusing to hold court and waging war against the U.S. government
-on charges of improper business relationship with litigan
-on charges of abuse of the contempt power;
-on charges of favoritism in the appointment of bankruptcy receivers
-on charges of perjury and conspiring to solicit a bribe
-on charges of perjury before a federal grand jury

Obviously James, not only can you not be bothered to read Gabriel's posts; you can't be bothered to read what YOU ask Gabriel to read. These are all impeachments for crimes, not for the way they ruled. While I do not presume to speak for Gabriel, it seemed obvious to me that he was not suggesting that Judges had never been impeached. He stated that judges are impeached only for crimes, which by your own references was proved to be true. He asked you a very pointed question then on what you implied from your previous post, which you again avoided, and instead chose to make a smart-ass remark

So here it is again, you seemed to imply that judges could be impeached for their legal opinions. Is this true? If you support the impeachment of judges who would interpret the Constitution in light of sharia, then you must also support the impeachment of judges who would interpret the Constitution in light of the laws of Jamaica or Zimbabwe. Do you?

Reading comprehension problems again, James.

1) The fact that you do not understand my answer does not imply that I did not answer you. You asked me, "If X, then what?" I said, "Given X, Y is inevitable and there is nothing you can do about it." Not only that, I demonstrated that under your theory of the operation of the Supreme Court, your X still leads inevitably to Y. The only way to avoid Y is to give the Supreme Court an army or something.... but really my problem with your question is your failure to see that the answer is trivial, because you have posited such an extreme case. I could counter-respond with an equally dumb one, such as "Suppose Congress wants to make Islam the state religion, and the President and Vice-President are killed by Muslim terrorists so the Speaker of the House, who is also a Muslim, gets to be President, and then he secretly arranges the assassination of the Supreme Court and appoints nine Muslim judges--then how does the power of judicial review help the Court safeguard the Constitution THEN, James? HA!" But the answer is a trivial one--if things get that bad then there is no safeguarding of the Constitution.

The Supreme Court, however, is RIGHT NOW distorting the meaning of the Constitution to fit their pet ideas, without any of these ridiculous things you posited going on, and you have no answers about how to stop it.

2) Yes, James, obviously there will be times, under my prescription, when there is wrangling between branches about what is Constitutional. I'm not too stupid to understand that, and I have admitted as much more than once in this discussion. Wrangling between the three branches about whether the government can do something was called, I thought, "checks and balances" and I thought you were in favor of them... Remember Newt Gingrich's "government shutdown"? The President wouldn't sign Congress' budget, Congress wouldn't pass the President's. They wrangled for months. Eventually public pressure made Congress back down.

I would rather see that happen with Constitutional issues than see judges rule that the Constitution means whatever they say it means, which is our CURRENT situation.

3). Not only did you not answer my last question, about do you support impeaching judges for their legal opinions and not crimes they've committed, you also never answered my question, "should the Supreme Court rule European-style blasphemy laws to be Constituional, since they supposedly are allowd to interpret our Constitution by foreign laws; if not, what mechanism stops them from doing so?"

But, as you said, you're not arguing anymore. Well, it's not like you ever had an argument to begin with. You can't argue with someone who doesn't understand written English.

johnnymozart, thanks for the assist...

Wow. I try to get out, but they keep pulling me back in. (I guess I'm having more fun than I thought.)

Johnnymozart, you must live in one tough state. You really have laws making mental instability and intoxication a crime? Is "arbitrary and oppressive conduct of trials" a misdemeanor or a felony? Same question for favoritism in the appointment of bankruptcy receivers.

You don't have to answer these questions, but if you can really point to a criminal code I would love to see it.

Anyway, here is part of the top paragraph from http://www.helpsaveamerica.com/us-constitution.htm ( a site you might like) which paragraph explains it pretty well:

"Note that Article III, Section 1 states that judges serve only as long as they have good behavior. This gives Congress the power to remove judges who violate our Constitution (this is bad behavior) or whatever other ethical violation the Congress and the people consider bad behavior. "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,... " This phrase gives we the people the right to petition our House of Representatives to remove any judge for bad behavior. "

And for the record, I support the impeachment of judges who violate the constitution or refuse to interpret laws and/or the constitution in a reasonable manner. If that applies to a judge/justice who interprets the Constitution in light of the laws of Jamaica or Zimbabwe, so be it. But I would have to see the particulars. If a judge reaches a decision, and then says "Oh by the way, that's how they do it in Jamaica too", that's not enough. On the other hand, if the judge says "Up to now the law has been X, but in Jamaica they do Y, so now we'll do Y", then he should probably go.

I guess I'll keep responding as long as its fun.

Gabriel, thank you for making my argument. You said your answer was "Given X, Y is inevitable", where X is " The Supreme Court does not have the sole power to interpret the Constitution, and Congress then passes laws which probably go against the Constitution, with the support of the President..." and Y is "The Supreme Court would just be ignored ....". Ignoring the Supreme Court (and thus all the courts) is equivalent to the abandonment of the rule of law.

To restate this in a context not so extreme: If the Courts do not have the sole right to interpret the Constitution, and if Congress passes a law outlawing abortion (with many paragraphs explaining why this is okay constitutional-wise), and the President signs it into law (after a whirlwind 60 townhalls in 60 days tour where he explains in great detail how constitutional the law is) and the Supreme Court says, "Hey, that's not Constitutional", the inevitable result is the Court will be ignored and abortion will be outlawed. Does this seem desirable? Now replace abortion with guns. Same answer?

Finally, just for you Gabriel:

"should the Supreme Court rule European-style blasphemy laws to be Constituional, since they supposedly are allowd to interpret our Constitution by foreign laws; if not, what mechanism stops them from doing so?"

Should they? No. Can they? yes (but not until Congress passes them and the President signs them). What mechanism stops them (assuming all those bad Congressmen who passed the law have been replaced?) 1. Congress changes the law. 2. Congress impeaches any judges who unreasonably refuse to accept the new law.

(Was the whirlwind tour too much?)

Before you guys start attacking the premise of the blasphemy question by saying "What if it's a state law!!", let me restate:

I think it is okay for Congress to impeach any judge for making unreasonable interpretations of the Constitution. (And assuming there is a reasonable chance they can get a conviction in the Senate. Otherwise they're wasting time and money.)

The people will judge the Congressmen. If stuff doesn't go the way I like, I will consider participating in the process more actively.

Okay, James, you then support impeaching judges for their considered legal opinions... so how is this any different from what you call "ignoring the Supreme Court" again?

You're trying to have it both ways. But really you've just agreed with me. If, as you say, Congress can keep the Court from making up their own Constitution by impeaching the judges... who decided that the Court was distorting the Constitution? Obviously, Congress did.

Therefore, by your argument, Congress can impeach judges when, IN CONGRESS'S OPINION, the judges have distorted the Constitution. And who decides that the judges distorted the Constitution? Congress, right?

You can't have it both ways, James. Either the Court is the sole determinant of what is and is not Constitutional--in which case Congress has no right to impeach judges who have committed no crimes--or Congress gets to determine that the judges ruled wrongly about the Constitution and impeach the judges--WHICH IS EXACTLY THE SAME AS SAYING CONGRESS GETS TO DECIDE WHAT IS CONSTITUTIONAL.

So, make up your mind. Does the Court get the Last Word or not? If you say that it does, but that Congress gets to impeach judges who disagree with its interpretation, then you have contradicted yourself.

So maybe you;d better think a little harder about what you've said. Reading comprehension is key.

Johnnymozart, you must live in one tough state. You really have laws making mental instability and intoxication a crime? Is "arbitrary and oppressive conduct of trials" a misdemeanor or a felony? Same question for favoritism in the appointment of bankruptcy receivers.

Hey, it was your link, slick. You really DO have reading comprehension problems, don't you? I didn't specify whether they were felonies or misdemeanors. I just said they were crimes, as opposed to legal decisions. Intoxication is not illegal, unless of course, its while on the BENCH, which was in your own link, which of course you didn't bother to read before you posted it.

Gabriel, the difference is that the legal opinions of the Court become the law. You can impeach the judges after the fact, but that of itself does not change the law. The Dred Scot decision was the LAW until they changed the Constitution.

I think the problem is that when you said "ignoring the courts" I thought you meant "ignoring the opinions handed down by the courts". My bad. Apparently you meant "ignoring the courts" to be equivalent to "getting so upset by the opinions of the court as to take the drastic actions necessary to effect a change in the law while upholding the law as presented in the opinions." I don't know how I could have made such a mistake.

Again, my point is, there is no last word, even if the Court has the sole power to interpret the Constitution. But if you're going to say that, by definition, the sole power to interpret IS the "last word", then I will say "so what?" It's okay if the Court has the last word, because if they abuse it, things can be fixed. And I'm not too worried about that because we have an extensive review process before we allow nine people to share the last word. It is unlikely that a majority will abuse that power. It's happened only once so far, and at the time it was a much closer issue than it is now.

Johnny, Johnny, Johnny. (Inserting humor and innuendo filter). 1. All crimes are classified as either misdemeanors or felonies. 2. "arbitrary and oppressive conduct of trials" is not a crime. (I will retract this if you can show me the state criminal code.) 3. "intoxication while on the BENCH" is not a crime. (I will retract this if you can show me the state criminal code. Note, this one very well may be on the books somewhere, but I want to see it.) 4. Judges can be removed for Bad behavior, which means whatever Congress wants it to mean. (Did you completely ignore that nice paragraph from your friends at helpsaveamerica.com?)

Here is the context that James seeks so desperately to avoid:

Gabriel, you should at least Google before you post. That and try wikipedia. That's how I got Marsbury and Dred Scot. 1. Congress has impeached judges several times. See http://air.fjc.gov/history/topics/topics_ji_bdy.html. Or just google "Impeachment of Federal Judges.

The ONLY person at that time, James, that was suggesting that Congress has never impeached judges...was you. You implied that judges are removed for legal decisions and you posted a citation, which you OBVIOUSLY DID NOT READ, to support that point.

I simply pointed out that what you were citing didn't mean what you were implying that it meant. You want to parse words over what constitutes a "crime", fine. You can look up the ABA recommendations for removal of impaired judges and lawyers that say that PRACTICING LAW WHILE IMPAIRED IS MALPRACTICE AND THUS, AGAINST THE LAW.

And I further notice that you use the two examples I used which support your aviodance of the overall point, which is that none of those judges in the citation you didn't read were removed for their legal opinions, and you avoid mentioning the ones that don't. Good grief, I've insulted you twice and you still can't be bothered to read it.

You would like us to believe that judges are removed arbitrarily and capriciously for "bad behavior" by a Congress who makes that bad behavior "anything they want it to mean" and it simply isn't true.

Johnny, you're moving into dangerous territory when you tell me what I am suggesting, implying, and would like you to believe. So let's get back to the original argument.

Early on, Gabriel said "If judges are the check on the President and the Congress, who checks the judges? Currently, no one does, and so they can do pretty much whatever they feel like. Well, some of us think that is wrong." I have been trying to refute the statement that no one checks the judges. I have come up with two examples: Constitutional amendment and impeachment. Focusing on the impeachment part, Gabriel stated "Impeachment is for the commission of actual crimes". I refuted this statement in two ways. First, by showing counter examples (and to be more specific, let's use impeachment for "arbitrary and oppressive conduct of trials"), and second by explaining that 1. Congress has the power to impeach a judge for bad behavior, and 2. unreasonable (not unpopular, just unreasonable) interpretation of the Constitution constitutes bad behavior.

At no time did I say, intentionally imply, or desire you to believe that judges have ever been removed arbitrarily and capriciously. I do say that Congress has the power to remove them arbitrarily and capriciously, but I don't think it has happened yet, nor do I think it likely in the future (possibly depending on whether Congressman Delay retains any authority in Congress).

So let me get this straight, James. What you're saying then, is that Congress can and should impeach judges who distort the Constitution--but that distortion does and should remain the law of the land until somebody passes a Constitutional amendment? And so Congress is bound to obey the decisions of a judge it imepached? Wouldn't that also imply that if a judge is impeached for being drunk on the bench his opinions still stand? Have you thought about what you have said at all?

Whatever, dude. I cannot see any coherent scheme behind your posts in this discussion, you seem to be just disagreeing in any way you can.

You're still in the position of saying Congress also has the right to interpret the Constitution, if they have the right to remove judges who don't conform to their interpretation of it.

And you cannot, it seems, show us an example of a judge being removed for a considered legal opinion. "Arbitray and capricious" opinions are not, of course, considered legal opinions...

So I think johnnymozart is right to call you out for not reading your own link. Judges are removed for being crazy, for being drunk, for running trials in an arbitrary and capricious manner, but if they do none of these things they cannot be removed because that is what an independent judiciary is all about, and that is how it should be.

I'm just saying that Congress and the President should have some other recourse besides Constitutional amendment, which takes forever and requires large supermajorities in favor.

Gabriel, I'm glad I can put your mind at ease. The Congress and the President do have some other recourse. If the Court unreasonably interprets the Constitution and thereby declares a law unconstitutional, the Congress can impeach the trouble makers and then pass the law again.

And yes, I agree that Congress has the power (and therefore right?) to remove judges who don't conform to Congress' interpretation of the Constitution. Fortunately they're not stupid enough to try to use that power to further a political agenda. We the people tend to frown on that.

Well,, James, I don't agree that Congress can or should impeach a judge who distorts the Constitution, and I am completely baffled by your opinion that decisions of judges impeached for distorting the Constitution have legal standing until Congress "passes the law again". I think you're a little confused about what you advocate here, because what you are saying happens is this:

Congress passes a law.
Judge declares it unconstitutional, so law is null and void.
Congress impeaches the judge.
Congress passes the law again, which has already been ruled unconstitutional.

Opponents of the law sue again. So, what does the new judge do? Does he rule the same way as the old judge or does he rule differently?

If he rules differently, he acknowledges that the original ruling was based on a distorted reading of the Constitution, for which a judge was rightly impeached--thus Congress should not have had to pass the law again.

If he rules the same way, then Congress has to impeach this judge too, and repeat until they get a judge that rules the way they want, with a confirmation battle and a new fight over the legislation every step of the way?

Is this your theory of how the Constitution ought to work?

At any rate it is manifestly different from the way the Constitution actually does work.

Gabriel, I admit that I'm not sure that Congress has to re-pass the law. I was just playing it safe. But it seems you're not as baffled as you claim. You seem to have got it right. That is how the Constitution should and does work. Just because you wish it were otherwise does not make it "manifestly" so.

So, if the Constitution gives Congress the right to impeach judges who interpret the Constitution differently from Congress--mind you, doing nothing else wrong--then where, James, is your example of this having been done?

You say the Constitution "should and does" allow that, so show me when it happens, if this is how it works.

The Constitution explicitly gives the Congress the right to limit the jurisdiction of the Court, it's there in black-and-white. The Constitution does not say jduges can be impeached for distorting the meaning of the Constitution. It says that they "shall hold their offices during good behavior". So who gets to decide what that phrase means, James? Congress or the Supreme Court? At any rate, if "bad behavior" is distorting the Constitution, presumably you can show us a precedent where it happened, James. If not, I can't accept that your interpretation is valid.

If Congress can impeach judges for any reason, they don't seem to know that they can.

Interesting..ya think the justices will enlighten the congress..right....

Gabriel, are you really saying that something can't be done if it hasn't been done yet? You're more conservative than I thought.

Congress has the right to impeach judges for bad behavior. If the judge's interpretation of the Constitution can be reasonably interpretted as bad bahavior, then so be it. And yes, Congress gets to determine the meaning of bad behavior. Well, I guess just the Senate's meaning of bad behavior is what counts in the end.

Here is the key point which I think you're missing. They can't impeach a judge for just any reason in the same way they can't raise taxes for just any reason. Consequences. They have the power, but the people have certain expectations. For example, my guess is that the people will be unhappy if a judge gets impeached because of their opinion in the Schiavo case. (This scenario is not too farfetched, by the way.) But I don't think too many would be unhappy if a judge got impeached for declaring a law unconstitutional because it violates sharia. Just a hunch.

Well, James, it's great that you've explained to us what the Constitution means to YOU. However, unless you are much better informed on Constitutional law than I am, I don't see how what you say about the Constitution squares with the independent judiciary. Here is an article you might look at:

http://www.abanet.org/govaffairs/judiciary/rac.html

"Although Marbury set precedent for the proposition that the federal courts could and should serve as a check on the political branches and majoritarian whim without jeopardizing their independence, such a proposition has never implied immunity from criticism. Two examples from the post-founding generation are illustrative. Impeachment proceedings were initiated against Justice Samuel Chase in 1804, in part for his allegedly partisan procedural rulings in the trial of defendant James Callender, an antifederalist publisher charged with violating the Alien and Sedition Acts.68 As Professor Barry Friedman observes in a forthcoming article, antifederalists were outraged, not only because they disapproved of the outcome, but because they objected to the countermajoritarian nature of the federal courts, that enabled unelected judges to pursue private political agendas at odds with the majority will.69 Senator William Giles, for example, complained that "[w]e have seen Judges who ought to be independent pronouncing political harangues,"70 and a newspaper editorial echoed that "[i]t will one day be the subject for inquiry, why judges and justices of the peace should be more independent of the control of a free people, than those who have the formation and execution of the laws entrusted to them."71

In the end, the effort to impeach and remove Justice Chase failed, as did a proposed constitutional amendment subjecting judges to removal upon joint address of the House and Senate. As previously noted, the convention and ratification debates suggested that federal judges would be subject to impeachment and removal for "political" crimes, including usurpations of power. The Chase impeachment clarified if not qualified the original understanding, by underscoring that unpopular, wrongheaded judicial decision-making in isolated cases does not constitute high crimes or misdemeanors that should subject judges to impeachment and removal..."

The ABA says you're wrong, James. So, try again, because American law does not work the way you think it does.

No, the ABA says YOU're wrong, Gabriel. Because I say that's what they say. Hmmm ... not a good argument. Try this:

The very fact that the House impeached Chase proves my point. They impeached him, but not for a good reason. Who do you think interpreted "high crimes and misdemeanors" (aka bad behavior) in this example? That would be .... the SENATE. The Senate could have convicted/removed Chase. (But again, there would have been consequences.)

So yet again, here's my point: The House can impeach for any reasons they feel like (as proven by the Chase impeachment), and if a supermajority of the Senate agree that the reasons constitute "High Crimes and Misdemeanors", then that judge goes. And I feel pretty confident that the sharia scenario would be sufficient for a supermajority to convict.

And before you start suggesting that I think it's okay for Congress to impeach for any reasons they feel like, please note that I never said or implied it was okay. I only noted that they have the power, and I pray they have the wisdom not to do anything foolish.

Reading comprehension problems again, James.

You want to make the plain meaning of an article be the opposite of what it says, I'm not going to have any further truck with your foolishness. Let me repeat:

http://www.abanet.org/govaffairs/judiciary/rac.html

"...The Chase impeachment clarified if not qualified the original understanding, by underscoring that unpopular, wrongheaded judicial decision-making in isolated cases does not constitute high crimes or misdemeanors that should subject judges to impeachment and removal..."

The precedent set by the Chase impeachment is just as legal and binding as that set by Marbury vs Madison. It doesn't say in the Constitution that judges can't be removed for anything that Congress says is "bad behavior" but it doesn't say anything about judicial review either. Well, according to you Marbury vs Madison is gold, and by the same logic the precedents concerning judicial independence, which are just as old and well established as Marbury vs Madison, ought to be gold as well. But you don't seem interested in exploring the logical consequences of your statements.

http://www.abanet.org/govaffairs/judiciary/r6b.html

"The two-hundred-year precedent in which no judge has been impeached and removed solely on the basis of an isolated, unpopular judicial decision, should be instructive not only to Congress but to federal judges as well. Despite occasional calls in Congress for the impeachment of judges on account of their decisions, no judge has ever been removed on that basis alone. Article III, Section 1 independence has shielded judges from such attacks. As inappropriate as it may be for a member of Congress to threaten a judge with impeachment and removal for making an unpopular ruling, the judge is equipped with the independence needed to withstand the ordeal."

You might read the entire thing, if you're not too busy triumphantly refuting yourself. You can start here:

http://www.abanet.org/govaffairs/judiciary/rhistory.html

Gabriel, I did not intend to interpret the article at all (except for my first sentence, which was silly on its face, which was the point). I simply made statements which I believe are true, and you seem to be trying to refute them with faulty logic. To recap:

I say "X could happen" (Congress removes a Supreme Court Justice for an egregiously unreasonable interpretation of the constitution, or maybe a pattern of such interpretations, e.g., sharia scenario) . Now you have tried two arguments to refute this. The first essentially states "X can't happen because X has never happened". If you don't see how this logic is faulty, there's nothing I can do for you.

The second argument is to the effect that "X cannot happen because 1. Congress said so (Chase precedent) and 2. the ABA says so." But neither of these sources has addressed "X". They both addressed "Y", which is the Chase scenario. And while I'm glad to see you embrace the ABA in this way, I'm quite confused at your argument strategy. You provide a quote from an iinfluential, but not authoratative, source , which quote I assume is meant to bolster the faulty concept that if something has never happened, it can't happen ("The two-hundred-year precedent...no judge has ever been removed " ), while passing up an authoritative quote which comes much closer to refuting my argument. Here is the quote from the House Judiciary Committee's Subcommittee on Courts:

[a] judicial decision (right or wrong), standing alone, cannot rise to the level of a 'high crime or misdemeanor.'

The key phrase which rescues my argument is "standing alone". I suggest that a "sharia scenario" decision (an egregiously unreasonable interpretation of the constitution) would stand, not alone, but in the context of a violation of the Justice's Oath of Office as it pertains to the Constitution.

We seem to be dropping off the front page of TCP, so this might be my last word on the subject. Gabriel, you seem to be proving the position that all of the authoratative and influential legal institutions agree that judges should not be punished for their legal decisions, right or wrong. I can live with that, because I don't think the sharia scenario will ever happen. Even if it does, I say it can be handled, but you say it can't. I'll take my chances.

James, your problem is, and has been all along, that YOU CANNOT UNDERSTAND WHAT YOU READ.

You claim to have read my arguments, but then you characterize my position as "X can't happen because X has never happened". What is the point of continuing the discussion if you make up things and attribute them to me?

The distinction between "something can't happen" and "something that can happen would not be considered legitimate if it did" is apparently completely lost on you.

Here is the problem, the same as it always has been all through the discussion:

I.) A government perceived by the population at large to be legitimate is necessary for peaceful democratic government, which is desirable in itself. (This is something I postulate, and I guess you do too James.)

II.) The Constitution prescribes the form and powers of legitimate government, and is accepted by Americans as legitimate itself. It is the standard of legitimacy used by the Ameri can people.

III.) People need to interpret what the Constitution says so that the government may conform to its prescriptions and thus preserve its legitimacy.

IV.) Not everyone can enforce their interpretation of the Constitution. Somebody has to do it. The Constitution does not say who that person is.

I don't think there is any disagreement between us on the premises of the argument.

This is it. This, and no other, is the problem. All the stuff I've said is just to illustrate that the current consensus on who gets to interpret the Constitution, and enforce their interpretation, is inadequate to preserve legitimate government.

James, you disagree with that statement. You disagree in several ways. First, by saying the consensus view is adequate. Secondly, by hypothesizing situations in which the government no longer considers itself bound by the Constitution, and using these absurd situations to argue against my proposed remedies. Secondly, after my demonstrations (using the hypothetical example of a majority of the Supreme Court that wants sharia, and real example of the majority of the Supreme Court that really does use international law to interpret the Constitution) that the consensus view was not adequate to preserve legitimacy, by making up your own consensus view and substituting it for the real one and claiming that the consensus view you made up is adequate.

My arguments to you have all been along these lines:

The consensus view that the Supreme Court gets to make all final decisions on the interpretation of the Constitution is inadequte to preserve legitimacy because it is too easy to subvert the Court by one faction enjoying a significant minority of popular support. Consequently, the views propounded by the Supreme Court are quite likely to be perceived by the majority as illegitimate. I further maintain that this has already happened. There is Roe v Wade, obviously, but gay marriage, for example, which is a new thing never before existing in our society which, although opposed by a large majority is supported by a significant minority, has already been imposed by courts in several states, including my own and may very well be imposed on the Federal level by the Supreme Court.

What are the remedies? James, you said "Constitutional amendment" to begin with. But it is a slow process that requires a very large supermajority to make work. I think that preserving the status quo should not require such Herculean efforts; rather it is radical changes that should have that burden. Quite aside from that, the Supreme Court gets to intepret the amendments as well! It is not a permanent solution.

Next you said "impeaching justices". But the real consensus view of Constitutional interpretation and judicial independence says that such attempts are not legitimate, whether or not they have majority support in Congress or wherever. You, however, say that consensus doesn't exist, although I have shown you that as far as the people who work with the law for a living are concerned, it does. You have shown nothing comparable in support of your view.

Now, Congress CAN pass laws impeaching judges for whatever, much as Congress CAN legalize pedophilia tomorrow if it wants. I am not arguing that since Congress has never done these things that they never CAN. What I am saying, is that these things would be considered illegitimate acts of Congress. (The pedophilia legalization would be trivially so.) However, Congress is so constituted that the massive political repercussions which would follow would have near-immediate results in reversing the damge done to its legitimacy; i.e., the party that did it, or even tried, would likely be hammered in the elections. Failing that, the Supreme Court would declare such laws unConstitutional.

But Supreme Court Justices and other Federal judges are shielded from the political repercussions of their illegitimate actions. They are shielded somewhat by the explicit wording of the Constitution, but far more so by the consensus view that a) courts alone have the final authority to interpret the Constitution and to have their interpretations enforced; b) the judiciary is independent and is not to be threatened with political repercussions for unpopular or illegitimate decisions.

You tried to argue that b) is not really the way it is, but going by the Constitution neither is a). The consensus view which accepts b) accepts it for exactly the same reasons that it accepts a); you cannot say that one is accepted and the other isn't when they are established to the same degree by precedent and tradition.

I actually am in favor of both a) and b). What I am against is that a) and b) are not explicitly spelled out in the Constitution, and consequently not powers that have definite limits. The executive and legislative branches have more explicitly defined limits; which is not to say that they don't find ways to overreach them, with the connivance of the courts (i.e., the abuse of the "interstate commerce clause").

Perhaps we do not really differ so much. We differ only on the magnitude of the problem and the adequacy of the current system to address it. And to me that problem is that the Supreme Court can do things which the population will consider illegitimate and there will be no peaceful recourse to solve the problem. This has been going on for a long time, arguably the last 100 years. Something needs to be done, preferably with the cooperation of the courts.

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