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Political non-debate

by mizzoucoug · 1/4/2012

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C
CougarClaw
Round 1



Sno & Spiff 1

JV 0



nothing personal. ;)







(and for a "non-debate" thread, this debate has been particularly interesting. Thanks for keeping it civil guys, i definitely appreciate it.)
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jvquarterback
snoscythe wrote:
It seems the problem is your unwillingness to admit the word executive means executive. You know, as in one who executes the law.



Now I have no problem with people rebelling against an unjust law, but they shouldn't go all Orwellian on us and say they are acting in their executive capacity when they are doing exactly the opposite.


And what about your unwillingness to address the issue of the presidential oath of office which makes no mention of legislative acts, but is pretty explicit about the Constitution?


I've addressed this. Your interpretation of the oath gives the president all the powers of legislation and judicial review. The Constitution was designed to prevent the combination of the legislative, judicial and executive powers. Thus your interpretation of the oath is in direct conflict with the purpose of the Constitution.



As I've said before, in the cases presented (re: slavery and quartering soldiers) the president should rebel against the Congress, the courts and their executive responsibilities and lead the people in that rebellion.
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snoscythe
The judicial as a final arbiter of constitutionality is a judicially created concept that only developed, not a constitutionally mandated principal, so the President having some autonomy to refuse to enforce legislative acts he finds repugnant to the constitution isn't constitutionally prohibited, it's maybe Marbury v. Madison prohibited, but my guess is that you, like me, have problems with that as well. The current position of the judiciary in relation to the other two branches would be apalling to the Founders---they weren't looking to empower 9 little dictators, so your argument that the executive would be usurping the power from the judiciary that the judiciary itself usurped in a power-ploy rings a bit hollow.



Here's a question that should distill it a bit--if he is to keep his Constitutional oath, against whom is the President to defend the Constitution? Attacks from the people? Himself? Foreign powers? None of those options really make sense. The only rational interpretation is that the president is under oath to defend the Constitution from encroachments by the other two branches, yet you seem to think this is an extra-Constitutional concept.
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jvquarterback
People who say judicial review is not a part of the Constitution haven't read Article III. But even if you disagree, you take it two steps further when you say the president is the arbiter of what is Constitutional. If you have a problem with Marbury v Madison and the judiciary making a power-ploy you should have an even greater problem with the president usurping that power.



As for your question, the executive should defend the Constitution against all enemies. Of course he should defend it against the other branches. The point is the methods the president is allowed to use to accomplish that defense are outlined in the Constitution. None of those methods include telling the Congress and courts that the executive simply won't do what they instruct. No those methods would include vetoing legislation or submitting new legislation to supersede previous laws.
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SpiffCoug
How can the President submit new legislation? Isn't that legislative duty?
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snoscythe
jvquarterback wrote:
People who say judicial review is not a part of the Constitution haven't read Article III. But even if you disagree, you take it two steps further when you say the president is the arbiter of what is Constitutional. If you have a problem with Marbury v Madison and the judiciary making a power-ploy you should have an even greater problem with the president usurping that power


Where in Article III is the judiciary deemed the final arbiter of whether or not a legislative act is constitutional? Yes, it says that all judicial power is vested in the judiciary, but prior to Marbury v Madison, no court in the history of the world held the power to determine whether or not legislative acts conformed to a constitutional document, so your argument is essentially that the Framers were assuming the judicial power included something it never included in the history of the world? I don't know how you can make that jump but be unwilling to take the presidential oath as a charge for the executive to truly defend the Constitution.
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jvquarterback
In 1787, during the federal convention, James Madison wrote, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” I'd encourage you to go to the link and see what else Madison has to say regarding the breach of one portion of a constitution having no bearing on other portions of a constitution (ie that a breach of the Constitution on the part of the legislature does not free the executive to assume legislative power).



As to your assertion no court in the history of the world held the power to determine the validity of legislative acts you should review your history. The English Privy Council reviewed over 250 colonial cases (mostly from Virginia and Massachusetts), several of which were held to be repugnant to English law and reversed.
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snoscythe
Yes, judges would consider it null and void, and so would the executive in not enforcing it--but Madison did not state that the judiciary was the sole arbiter of what the Constitution means, which is the concept we are discussing. Note that once again you are wandering outside of the Constitution to tell us what it means rather than pointing out where it states what you claim in Article III....because it doesn't state what you want it to.


jvquarterback wrote:
As to your assertion no court in the history of the world held the power to determine the validity of legislative acts you should review your history. The English Privy Council reviewed over 250 colonial cases (mostly from Virginia and Massachusetts), several of which were held to be repugnant to English law and reversed.


Again, no court prior to Marbury v. Madison asserted the authority to determine whether legislative acts were repugnant to a constitutional document. The English Courts would strike down colonial acts that conflicted with Parliamentary Acts, much as the US Judiciary strikes down state laws that conflict with Congressional Acts, but that is not the same as my assertion that the judiciary usurped the role of final arbiter.



I think a big part of your problem is that you think that because courts have some check on the constitutionality of things, the executive cannot have any similar check. I think his oath (an express statement in the Constitution) speaks volumes as to the fallacy of that narrowminded stance. The courts should consider unconstitutional acts as null and void, and likewise the executive, with his express oath to defend the Constitution, was never expected to execute unconstitional acts and thereby breach his constitutionally mandated oath the protect and defend that very Constitution.



As for who should be the final arbiter of what the Constitution means, as with all other powers not EXPRESSLY enumerated in the Constitution, it should flow to the people.
B
BoiseBYU
snoscythe wrote:
Yes, judges would consider it null and void, and so would the executive in not enforcing it--but Madison did not state that the judiciary was the sole arbiter of what the Constitution means, which is the concept we are discussing. Note that once again you are wandering outside of the Constitution to tell us what it means rather than pointing out where it states what you claim in Article III....because it doesn't state what you want it to.


As to your assertion no court in the history of the world held the power to determine the validity of legislative acts you should review your history. The English Privy Council reviewed over 250 colonial cases (mostly from Virginia and Massachusetts), several of which were held to be repugnant to English law and reversed.


Again, no court prior to Marbury v. Madison asserted the authority to determine whether legislative acts were repugnant to a constitutional document. The English Courts would strike down colonial acts that conflicted with Parliamentary Acts, much as the US Judiciary strikes down state laws that conflict with Congressional Acts, but that is not the same as my assertion that the judiciary usurped the role of final arbiter.



I think a big part of your problem is that you think that because courts have some check on the constitutionality of things, the executive cannot have any similar check. I think his oath (an express statement in the Constitution) speaks volumes as to the fallacy of that narrowminded stance. The courts should consider unconstitutional acts as null and void, and likewise the executive, with his express oath to defend the Constitution, was never expected to execute unconstitional acts and thereby breach his constitutionally mandated oath the protect and defend that very Constitution.



As for who should be the final arbiter of what the Constitution means, as with all other powers not EXPRESSLY enumerated in the Constitution, it should flow to the people.

Sno, at the 30,000 foot level, I appreciate what you are saying. But you do not really mean that each citizen gets to be the the final arbiter of the constitution, do you? That can breed anarchy. We cannot have this citizen saying I get to ignore that law because I think it is unconstitutional and another citizen do the same with respect to a different law etc etc etc. I think part of the social compact, if you will, is that we at least individually gave up some of that perogative. In the end, and on perhaps a different note, all the laws and all the constitution do not mean much if we are willing to ignore them. My ancestors who were expelled from Missouri know about that...The US constitution did not help them. The MO constitution did not help them. No branch of governement, federal or state, helped them, and so a mob helped themselves to their land and their lives.....
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snoscythe
To clarify--the citizenry, through the individuals they elect to the legislative and executive and their will as made manifest through them, is the final arbiter. That is what I mean by "the people" as opposed to each person.
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jvquarterback
First, snocythe is right that the citizenry is the final arbiter of the Constitution. I almost wrote that in my last post. This right is enumerated in the 7th amendment.



Judicial review has been a part of English law since 1610 when Sir Edward Coke ruled, "in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void."



Your assertion that the judiciary did not hold this right to review prior to Marbury v Madison is simply false. The 250 cases I mentioned previously were argued on the basis of judicial review of parliamentary actions. There were of course thousands of cases reversed in the colonies based on conflict with parliamentary English law, but those 250 cases were heard based not on contradiction between colonial and parliamentary law, but on the concept of judicial review of parliamentary law itself. The most famous such case, Writs of assistance, was argued by James Otis, Jr in Massachesetts in 1760 and was one of the defining moments leading up to the revolution.



Finally, the Constitution was devised to separate powers of government. Just as the courts do not have the veto power of the executive or the power to enact legislation, the executive does not have the power of judicial review or the power to enact legislation, both of which he would be doing via the executive orders in question. Your interpretation grants the executive unlimited powers.
T
tww
I find the term "final arbiter" a misleading term. Because things are only final because they have exhausted a particular cycle. These cycles are repeated as long as enough of the people want to kick it around. Even a death sentence is not final anymore. Courts reverse themselves, laws are changed, technology impacts rulings, etc.



Final arbiter has some implication that it is an ultimate power, which I do not like at all.





I have noticed that the word "mandate" has ben used a lot in regard to the constitution. The purpose of the constitution is not to mandate but to grant limited powers. What they do with those powers is up to them as long as they act within them.



The document that mandates is the declaration of independence.
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snoscythe
Again jv, you fail to find a case on point where a judiciary held the power to void acts of the legislature as repugnant to a controlling constitutionlike document. You continue to cite examples that fall short of the mark you are claiming to set. If you are really supporting the idea of a Supreme Court common-law, you would find yourself on the Roe v. Wade side of the spectrum.



True conservatives understand that this common-law power to which you refer was reserved to the states as the federal judiciary is limited by the Constitution to the following "heads of jurisdiction":



1) cases or controversies:

- arising under this Constitution,

- the Laws of the United States,

- Treaties made, or which shall be made, under their Authority;--to all

2) cases:

- affecting Ambassadors, other public Ministers and Consuls;

- of admiralty and maritime Jurisdiction;

3) controversies:

- to which the United States shall be a Party;

- between two or more States;

- between a State and Citizens of another State,

- between Citizens of different States,

- between Citizens of the same State claiming Lands under Grants of different States,

- between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.



Notice that the "common-law" does not fall under any of the heads of jurisdiction, and when the federal judiciary hears cases in the "betweens," it defers to and applies the common-law of the states.



So your latest argument is that the judiciary is the final arbiter of the Constitution under a category of law that even the federal judiciary concedes is reserved to the judiciaries of the states? That's the kind of thinking that got us Roe v. Wade.



Even to the extent that the federal courts are forced by expediency to create federal common law (e.g. what does "reasonable" mean?), the federal common law is trumped by acts of Congress......which is the inverse of your construct that the general common-law power (reserved to the states) is somehow the basis of the judiciary's position as a the sole arbiter of constitutionality between the three branches of government when the judiciary itself acknowledges that it's pragmatic common law is inferior to mere legislative acts.



So, applying Occam's Razor here, what the more plausible explanation--(a) your misattribution and then inversion of the common law authority as a twisted assumption that the Judiciary was assumed to be the sole arbiter, or (b) that the Framers meant what they said when they explicity made the President take the oath that he would "to the best of my Ability, preserve, protect and defend the Constitution of the United States" ???
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jvquarterback
First I'm glad you have finally conceded that at least state judges have the right of judicial review. In doing some reading on this apparently several of the state courts (VA, MA, NY, GA) under the articles of confederation exercised the right of judicial review of legislation, again refuting your idea that no court had ever exercised that right.



Now a couple of other points:



In 1610 Coke held that in the absence of an express constitution, the common law is the constitution (derived from the defense of the common law in Magna Carta) which is still the interpretation in English courts to this day. So when Coke used the words "common law" you should insert constitution. This is much more robust a statement than what I believe but it was the basis for the arguments Coke later used as a member of the House of Commons to limit the legislative and judicial powers of the King.



Marbury v Madison surely fits under the heading "affecting Ambassadors, other public Ministers and Consuls." To say that it should be expanded to a review of Roe v Wade is ludicrous (and a red herring). But it surely applies to the actions of the the legislators and president who are also ministers.



You say my assumption that the judiciary is the arbiter of the law - well I have 600 years of English, colonial and state law to back that up. During that same 600 years the role of the executive in making and interpreting laws was successfully diminished time and time again yet you would now abandon all of that and give the executive all the power that was wrested from it and remake a king.
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SpiffCoug
Regardless JVQB, you believe Lincoln was wrong in emancipating slaves and that a law passed - even if unConstitutional - that went unchallenged by the courts would have to be enforced by the President.



Both of these opinions and positions are wrong.
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B
BoiseBYU
I am fine with the courts being the final arbiter of the constitutionality of a law. I am fine with the President refusing to enforce a law he or she thinks is unconstitutional, at least until the Supreme Court definitively weighs in. I am fine with Congress withholding funding a department of the Executive should the President refuse to enforce a law he thinks is unconstitutional. All of this seems to me to be in the interest of checks and balances. AND for the record, I am definitiely glad Lincoln freed the slaves. And I am in favor of sending JVP to timeout corner the next time he resorts to citing 400 year old judicial precedent from a Judge of a different country.... ;)
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tww
BoiseBYU wrote:
I am fine with the courts being the final arbiter of the constitutionality of a law. I am fine with the President refusing to enforce a law he or she thinks is unconstitutional, at least until the Supreme Court definitively weighs in. I am fine with Congress withholding funding a department of the Executive should the President refuse to enforce a law he thinks is unconstitutional. All of this seems to me to be in the interest of checks and balances. AND for the record, I am definitiely glad Lincoln freed the slaves. And I am in favor of sending JVP to timeout corner the next time he resorts to citing 400 year old judicial precedent from a Judge of a different country.... ;)


That works for me.
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scott715
I hope you lawyers are having a good time.
M
Mars
scott715 wrote:
I hope you lawyers are having a good time.

I don't. ;)
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IowaCougar
I must be desparate to have read all of that long and boring drivel! Boy am I glad I'm not a lawyer!
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