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Thread: SCOTUS, federal judiciary unchecked, a "super legislature" "ruler of ... Americans,"

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    SCOTUS, federal judiciary unchecked, a "super legislature" "ruler of ... Americans,"

    With some of its decisions — including this year’s gay-marriage ruling and the 1973 Roe v. Wade abortion ruling — it declared itself a “superlegislature” and “the rulers of 320 million Americans,” said Mr. Cruz.

    John Eastman, law professor at Chapman University and chairman of the board of the National Organization for Marriage, testified that the balance of power between the three branches of government has shifted and the federal judiciary is now “unchecked.”

    Constitutional amendments — allowing a majority of states and a supermajority vote of each chamber of Congress to override a ruling by the Supreme Court — could rectify that imbalance of power, said Mr. Eastman.

    http://www.washingtontimes.com/news/...vative-calls-/
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    Quote Originally Posted by Nightmare View Post
    With some of its decisions — including this year’s gay-marriage ruling and the 1973 Roe v. Wade abortion ruling — it declared itself a “superlegislature” and “the rulers of 320 million Americans,” said Mr. Cruz.

    John Eastman, law professor at Chapman University and chairman of the board of the National Organization for Marriage, testified that the balance of power between the three branches of government has shifted and the federal judiciary is now “unchecked.”

    Constitutional amendments — allowing a majority of states and a supermajority vote of each chamber of Congress to override a ruling by the Supreme Court — could rectify that imbalance of power, said Mr. Eastman.

    http://www.washingtontimes.com/news/...vative-calls-/
    This is so true!!!! They have become Tyrants, at least some of them.

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    Regular Member twoskinsonemanns's Avatar
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    reminds me of FDR in 1937. Don't like the SCOTUS rulings? Just threaten to change the constitution until they fall in line.
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    Quote Originally Posted by twoskinsonemanns View Post
    reminds me of FDR in 1937. Don't like the SCOTUS rulings? Just threaten to change the constitution until they fall in line.
    Actually, FDR didn't threatened to change the constitution, he threatened to stack the court with sympathetic justices. Notice that the constitution doesn't set the number of members of the SCOTUS. If a president with popular and congressional support is consistently losing SCOTUS cases on 5-4 margins, adding a couple of new justices to the court pretty much fixes that.

    Google, "Switch in time that saved nine".

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    Regular Member sudden valley gunner's Avatar
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    I can't remember who said it but it went something like Iran has the Mullah's US has the supreme court.
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    Regular Member F350's Avatar
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    If the entire SC were about to be hanged and I was told I could spare any or all if them; Scalia and Thomas would be the only two!

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    Quote Originally Posted by F350 View Post
    If the entire SC were about to be hanged and I was told I could spare any or all if them; Scalia and Thomas would be the only two!
    I would donate rope.

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    Regular Member DrakeZ07's Avatar
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    Oh, so it's perfectly fine for people like OC For Me, and others to call us liberals Libtards, but I can't call the other side of the isle Conserva-fascists? That's some major league BS and favoritism.

    Quit being butthurt over the gay marriage ruling, and move on with your lives.
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    Quote Originally Posted by Nightmare View Post
    With some of its decisions — including this year’s gay-marriage ruling and the 1973 Roe v. Wade abortion ruling — it declared itself a “superlegislature” and “the rulers of 320 million Americans,” said Mr. Cruz.
    This reminds me of a great newsletter that Newt Gingrich put out on the subject when he was running for president last time around. For the life of me I can't find it on the web any longer. But it was a great read. Not that I agree with everything Gingrich has to say, of course. But I find that he often looks at things from a completely different angle than do most others who get stuck in the whole left-right paradigm. So I find his words often thought provoking even when I don't agree.

    Anyway, he argued that the SCOTUS is "supreme" only relative to other courts; it is supposed to be a co-equal branch with Congress and the President. But it has become supreme over the other branches, for all practical purposes it gets the last word on things. This is because the appointment process is not much of a check and the ConAmd process is too difficult to employ. Whether it is abortion, marriage, citizen's united, hobby lobby, etc, both sides of the left-right divide can find cases they really believe highlight these observations as true.

    A ConAmd to provide a formalized path to over-rule or nullify or limit SCOTUS rulings as proposed in the article you reference is one possible solution. But I suspect that even if put into place wouldn't overturn most egregious rulings based on the supermajority in congress requirements.

    The real problem, as Gingrich pointed out, is that Congress and the President have abdicated their responsibility to act as co-equal branches. All they care about is getting and staying in office (something federal judges don't worry about once seated with lifetime tenure); and to do that keeping the benefits flowing is all that matters. On this front, William Sutton wrote a fine opinion piece recently on the heals of the latest ObamaCare ruling. That is where Roberts spent some 4 pages (or was it merely paragraphs) explaining why "established by the States" really means "established by the States or the federal government".

    Gingrich argued that if the Executive and Congress were serious about checking the SCOTUS they could. For example, FDR made clear during WWII that under no circumstances was he going to release German spies captured on the east coast to a regular civilian trial. He was going to exercise war powers to hold, try, and punish them according to rules of war. And he did. The SCOTUS declined to even accept the case. At some point, if court rulings are too far outside the popular consensus, nullification through refusal to obey may be an option for the other branches, as well as for the States. I'd expect that refusing habeus corpus (as FDR did preemptively) is the most extreme of the extreme. But what if States simply refused to allow their citizens to be subjected to federal prosecution for violation of "trespassing" on federal land when roads are closed (and upheld by the courts) despite laws and promises to the contrary?

    Article III, Section 2 allows congress to impose certain statutory limits on what cases the federal courts can even accept:
    "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." What exceptions and regulations has congress ever tried to impose.

    Gingrich also pointed out that while judges' pay cannot be diminished, their staff can be, and entire courts (9th circuit) can be dissolved by congress. If judges are way out of line, just limit their ability to do any work, reduce their jurisdiction to where they hear far fewer cases, etc.

    Obviously, none of this is intended to impose either a conservative or a liberal view onto court rulings. In many cases, even conservatives among gun owners are grateful for liberal-leaning rulings limiting police powers of search and detention, for example. But it is about restoring proper constitutional balance so that we don't have a single, unelected branch of government acting as a super-legislature.

    Finally--and I trust all here would agree--I recall Gingrich arguing that as co-equal branches, the Congress and Executive have co-equal responsibility to assess the constitutionality of proposed laws and only vote for or sign laws that are on solid constitutional footing. No elected official should pass a law expecting the court to be the only arbiter of what is or isn't constitutional.

    Just some recollections from an article I can no longer find.

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    Quote Originally Posted by F350 View Post
    If the entire SC were about to be hanged and I was told I could spare any or all if them; Scalia and Thomas would be the only two!
    Quote Originally Posted by Freedom1Man View Post
    I would donate rope.
    Let's just wait until we have someone else making appointments. Can you imagine Obama with 7 to 9 seats to fill?

    I had great hopes for Roberts, but his two rulings on ObamaCare strongly suggest he is as susceptible to rule on political/social views rather than solid constitutional law as any of the most liberal members of the court might be.
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

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    Quote Originally Posted by DrakeZ07 View Post
    Oh, so it's perfectly fine for people like OC For Me, and others to call us liberals Libtards, but I can't call the other side of the isle Conserva-fascists? That's some major league BS and favoritism.
    That is a shame, considering both insults are pretty accurate.
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    Quote Originally Posted by DrakeZ07 View Post
    Oh, so it's perfectly fine for people like OC For Me, and others to call us liberals Libtards, but I can't call the other side of the isle Conserva-fascists? That's some major league BS and favoritism.

    Quit being butthurt over the gay marriage ruling, and move on with your lives.

    I agree with you... and them.



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    Quote Originally Posted by DrakeZ07 View Post
    Oh, so it's perfectly fine for people like OC For Me, and others to call us liberals Libtards, but I can't call the other side of the isle Conserva-fascists? That's some major league BS and favoritism.

    Quit being butthurt over the gay marriage ruling, and move on with your lives.
    I do not use the term "libtard." That term is a personal insult and also a violation of this forum's rules. You are comfortable with the damage done to individual liberty by the ruling. You agree with this further errosion of state sovereignty, and increased extra-constitutional federal control that is a result of this ruling.

    Calling you a liberal is merely a succinct descriptor of you and your belief system derived from the words you post here on OCDO.

    You agree with a unchecked federal judiciary when it rules in your favor. Congress and POTUS have long been absent from holding SCOTUS accountable for their many failures.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by Nightmare View Post
    John Eastman, law professor at Chapman University and chairman of the board of the National Organization for Marriage, testified that the balance of power between the three branches of government has shifted and the federal judiciary is now “unchecked.”
    Hardly. Congress could remove any of them for bad behavior. We the People can replace Congress if they don't. Congress can amend the Constitution, thereby tying SCOTUS hands. A new president could appoint a conservative justice if/when the next liberal justice dies.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by since9 View Post
    ... Congress can amend the Constitution, thereby tying SCOTUS hands. A new president could appoint a conservative justice if/when the next liberal justice dies.
    Not exactly correct.

    Article V
    The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
    Only the states (3/4 of them) can amend constitution.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by since9 View Post
    Hardly. Congress could remove any of them for bad behavior. We the People can replace Congress if they don't. Congress can amend the Constitution, thereby tying SCOTUS hands. A new president could appoint a conservative justice if/when the next liberal justice dies.
    Jurisprudence has developed that "good behavior" means a lifetime tenure. Only fourteen judges have been impeached.

    As the Constitution is not a living, breathing, document, neither is the Supreme Court to be tinkered with willy-nillly by men.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by DrakeZ07 View Post
    Oh, so it's perfectly fine for people like OC For Me, and others to call us liberals Libtards, but I can't call the other side of the isle Conserva-fascists? That's some major league BS and favoritism.

    Quit being butthurt over the gay marriage ruling, and move on with your lives.
    Become enlightened. Start fighting against both liberals and conservatives. Both parties are fundamentally, fundamentalists, which means they are fundement
    http://www.merriam-webster.com/dictionary/fundament
    Last edited by Dave_pro2a; 07-27-2015 at 10:37 AM.
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    Regular Member Dave_pro2a's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    That is a shame, considering both insults are pretty accurate.
    "I'm just a no-account screed-peddler" Dave Workman http://goo.gl/CNf6pB

    "We ought to extend the [1994] assault weapons ban" George W Bush

    "The Bush Administration declared a permanent ban today on almost all foreign-made semiautomatic assault rifles." George Bush Sr, New York Times on July 8, 1989

    "I support the Brady bill and I urge the Congress to enact it without delay." Ronald Regan.

    "Guns are an abomination." Richard Nixon

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    It's only an "activists" court when you don't agree with their decision. Roe v. Wade was a ruling guaranteeing a patients right to medical privacy, it reinforced our right to privacy from government intrusion.

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    Replace the justices every 10 years, would help.

    My .02

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    Quote Originally Posted by countryclubjoe View Post
    Replace the justices every 10 years, would help.

    My .02

    CCJ
    From Saul K. Padover's biography of Thomas Jefferson. Combination of paraphrase and quotes:

    During his presidency, Thomas Jefferson had to deal with Federalists. The chief justice of the Supreme Court was arch-federalist John Marshall.

    A few years after he left office he entertained at dinner several people, including his enemy Marshall.

    To fill the Supreme Court of the Michigan Territory, Jefferson had chosen three utterly different men from different parts of the country. Only one was a lawyer. The second was a philosopher and scientist. The third was a farmer.

    Marshall asked, "And, how did your plan operate, Mr. President; did your machine go well?"

    "Upon my word," Jefferson replied candidly, "it would not go at all."






    Note: Although not evident from the anecdote, SCOTUS has been bending and twisting the constitution from the very beginning. One commentator pointed out that SCOTUS acts as an on-going constitutional convention.
    Last edited by Citizen; 07-28-2015 at 09:08 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Citizen View Post
    "Upon my word," Jefferson replied candidly, "it would not go at all."
    I love it! And how it should be.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
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    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member Dave_pro2a's Avatar
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    Fewer lawyers = more justice.
    "I'm just a no-account screed-peddler" Dave Workman http://goo.gl/CNf6pB

    "We ought to extend the [1994] assault weapons ban" George W Bush

    "The Bush Administration declared a permanent ban today on almost all foreign-made semiautomatic assault rifles." George Bush Sr, New York Times on July 8, 1989

    "I support the Brady bill and I urge the Congress to enact it without delay." Ronald Regan.

    "Guns are an abomination." Richard Nixon

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by beebobby View Post
    It's only an "activists" court when you don't agree with their decision. Roe v. Wade was a ruling guaranteeing a patients right to medical privacy, it reinforced our right to privacy from government intrusion.
    It is only a activist court when any court (judge(s)) fabricate justifications for their ruling. Liberty minded folks see that courts are not a check to counter government overreach.

    Obamacare...congresses taxing power extends to taxing our mere existence. Clearly unconstitutional and not enumerated in the text of the Constitution. The 16A even clarifies the taxing powers of Congress.

    Liberals are not deterred with such "minor" details.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    It is only a activist court when any court (judge(s)) fabricate justifications for their ruling. Liberty minded folks see that courts are not a check to counter government overreach.

    Obamacare...congresses taxing power extends to taxing our mere existence. Clearly unconstitutional and not enumerated in the text of the Constitution. The 16A even clarifies the taxing powers of Congress.

    Liberals are not deterred with such "minor" details.
    It's only "fabrication" if you don't agree with it. What constitutes "fabrication" is a matter of opinion, and everybody has one. Apparently SCOTUS has a different opinion than you and they are, "Constitutionally", the ultimate arbiters.
    Last edited by beebobby; 07-29-2015 at 11:39 AM.

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