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Jebbie

Published Letters: 3964

Tuesday, October 20, 2009 08:31 AM

-- wgsalter

Except that that language is from the Declaration, rather than the Constitution, and therefore has no legal status whatsoever other than relating to our decision to severe our ties with England, you're right. Which is to say your utterly wrong. One's rights are not the gift of the Courts; if there is no reason for the Courts to pay attention to the 9th Amendment, there is no reason for the people to pay attention to Article III.

I am fully aware of the source of my words. I was using those particular words as an example of "unalienable" rights which are nothing of the sort. The Court can define life in a manner that would not be to the liking of many people. Practically speaking, they have already done so with their decisions on abortion.

That's their job. That is also self-evident.--jebbie
Then why have we been having this debate for the entire history of the country?

Because two people can read the exact same words and come to completely different conclusions as to what they mean. Note your responding to the "implications" of what I wrote rather than what I actually wrote. You basically redefined my words to meet your preconceptions or to mean something which you find easier to argue against. Two people can read the words "well regulated militia" and see two different meanings. That's why there have been arguments. Pro-choicers can find privacy rights in the Constitution that anti-choicers cannot (or do not wish to) find. That's why there have been arguments and I suspect there will be similar arguments forever, or as long as this country lasts.

For the answer to your question regarding where the Constitution makes the Judicial the sole determiner of the constitutionality of laws, read Article III of the Constitution.

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

How else would a determination of unconstitutionality of a law be determined if not through the judicial process? Please don't claim that Executive signing statements do so because we both know that is Borkian bullshit. All signing statements do is tell Congress that the Executive believes a law or a portion of a law is unconstitutional and therefore will be ignored. That does not mean such a belief is automatically legally or constitutionally correct. If Congress does not agree with the Executive regarding such signing statements, it is free to use it's power to either change the law to suit the executive, or challenge the Executive and force a Judicial determination regarding the constitutionality of a law - or do nothing (which is basically what they have been doing). Again, just saying something is unconstitutional does not make it so - unless it is the Judicial Branch saying it.

As to your 2nd Amendment example, if the Court had taken a position on the meaning of the 2nd Amendment prior to the expansion of gun ownership, and had thereafter ruled that the State can indeed limit ownership of firearms (in addition to what they already do) it would be a ruling in accord with the Constitution simply because they said it was. Congress can then start the amendment process and change the Constitution to more clearly read what they want the outcome to be. For example, they could change the 2nd Amendment to and delete the words, "A well regulated militia, being necessary to the security of a free state," and then have the 2nd Amendment read: "The right of the people to keep and bear arms, shall not be infringed." They could even go on to define the word "arms" so there could be no misinterpretation of what they wanted to do. That's part of Congress' job, to provide a check on Judicial power.

Tuesday, October 20, 2009 08:02 AM

-- jmatrixrenegade

And, yeah, a law isn't just unconstitutional when the SC says so.

In fact, many areas never get to SC review. Many are "political questions" -- this doesn't mean anything goes as of right. It might mean anything goes as of brute force. Deprivation of constitutional rights without a remedy doesn't suddenly make them legitimate. This is important since some put too much emphasis on the courts. Other branches, and the people at large, also have a role in protecting our rights.

Yes, there are other ways of getting rid of bad laws and Congress certainly has a role, as does the Executive but a law cannot be declared as unconstitutional by any entity other than the Judicial.

That's the difference between a bad law and an unconstitutional law. That is not, however, to say that a bad law cannot also be unconstitutional.

Yes, the People have a lot to say about this also, as you note. If the People do not like a law, they can elect representatives who can be charged with changing the law or getting rid of it outright. That's part of the political process that we have seen being eroded of late due to the extremely high percentage of elected federal representatives despite some widespread dissatisfaction with some laws they are responsible for. The People seem to have been remiss in discharging their duties in this area. Of course, it's quite possible that the high percentage of recidivism among elected representatives is due to the erosion of public involvement in the electoral process. It's a chicken/egg situation.

Still, even if the People elect new representatives who then change or discard a bad law, that, in and of itself, does not mean the law was unconstitutional, nor does it make the law unconstitutional. Only the judicial branch can, under our constitution, make that determination. It's what they do.

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