Daily Topics - Wednesday March 28th, 2012

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Hour One: SCOTUS vs. POTUS - Caroline Fredrickson, American Constitution Society for Law & Policy

Hour Two: Will the Supreme Court toss life without parole for juvenile offenders? Cully Stimson, Heritage Foundation

Hour Three: Democratic Underground readers are wrong on SCOTUS


mathboy's picture
mathboy 3 years 34 weeks ago

What is the name of this SC case on ObamaCare? I haven't heard anybody give it a name yet.

Maxrot's picture
Maxrot 3 years 34 weeks ago

Should a 14 year old be given a mandatory life sentence without the possibility of parole? The question infers that putting anyone in jail without the possibility of parole is acceptable, and I reject that. Perhaps there are people that society is better off without their presence, but when we start deciding that people are throw-a-ways at the time of sentencing we no longer even have a symbolic rehabilitation system. We have decided that the human condition is not one of redemption, we have decided that punishment outweighs functioning lawfully in society. The excess of our prison system is severely flawed, such suggestions just seem to be compounding the problem.

I'm not opposed to life in prison without parole sentences, but I can't support mandated sentences in any form.


alp227's picture
alp227 3 years 34 weeks ago

What about in the article III, section 2 of constitution: "In all the other Cases...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." Could Thom please address the "both as to law and fact" part?

mathboy's picture
mathboy 3 years 34 weeks ago

In his letter to Spencer Roane, Thomas Jefferson says that his problem with Marbury v. Madison (although to be honest, I can't tell for sure that that's what he's discussing, since the letter was written 16 years later) is that the Supreme court had taken an exclusive power to interpret the Constitution. He puts emphasis on the word "exclusive" by putting up examples where he thought the members of the other two branches should have the freedom to interpret the Constitution for themselves. (Of course, he forgets the principle well known at the time that "no man is allowed to be a judge in his own cause. If members of the government get to interpret the Constitution for themselves and no one else is allowed to "check" that, power can be absolute for the reason that Jefferson gives in the letter.)

When a court decides to "strike down" a law as Unconstitutional, what it's really doing is making an injuction against itself and any courts below it, requiring that they not enforce that law. It does not involve altering the code of laws. It is an act in which the court interprets the Constitution for itself, as Jefferson wanted. He just didn't recognize it as such.

Interestingly, the Marshall court decided to take on judicial review because the alternative was to expand its power beyond what the Constitution allowed. From Wikipedia:

"Nonetheless, the Court stopped short of compelling Madison (by writ of mandamus) to hand over Marbury's commission, instead holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court's original jurisdiction original jurisdiction beyond that which Article III established."

So the court was in the position of having to assume one power and giving up another. The concept of judicial review at least existed well before then, in England and the colonies, and since the system of common law in the United States is a continuation of the common law of England, the concept is valid in general. The only question then was whether it could also be applied to the unprecedented case wherein there is a higher level of national law, which England doesn't have.

Article III, Section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, ... —to Controversies to which the United States shall be a Party;..."

How can the United States be a party to a case in equity (i.e. a civil suit) without the judicial branch having some power to strike down a law? What is the court supposed to do, ask "please don't do that anymore"? (That sounds like Madison's plea not to form political parties.)

By the way, that section says nothing about what kinds of decisions any court can make, so if you argue that the Constitution would have had to explicitly say that they can strike down laws, it would have had to say explicitly that they can fine people or imprison them in a case in law (i.e. criminal cases) or that it can force someone to pay damages in a civil suit.

mathboy's picture
mathboy 3 years 34 weeks ago

Remember that though the members of the Supreme Court are not electable, they are removable by the great and powerful Congress that's supposed to rescue us from Unconstitutional laws. Of course, the problem is that Congress deals with everything, and therefore you can't elect a Congress entirely on one law. It's just not going to happen, especially since the Congress that passed the Unconstitutional law had enough popular support to be elected in the first place.

If the President's power of veto is the ultimate test of Constitutionality, and Jefferson wanted the Supreme Court to have that power rather than the President, doesn't that mean Jefferson thought the test of Constitutionality should reside with the Supreme Court?

mathboy's picture
mathboy 3 years 34 weeks ago

Terpsichoraneously ugly? Terpsichore is the muse of dancing and choral singing. I don't see how that isn't an oxymoron.

As for the bad: A law against the foreign-born doing something that would violate the equal-protection clause for citizens.

Bullhorn Journal's picture
Bullhorn Journal 3 years 34 weeks ago

You're forgetting to mention that the Courts have also built their own military, in the form of an armed and aggresive police force. One need only attend an Occupy event and see the police force in their military garb to understand that one.

DFMM's picture
DFMM 3 years 34 weeks ago

Everyone needs health care sooner, not just later. People who are healthy and free of any symptoms of disease, still need preventive care --- whether physicals, mammograms, eye exams, etc. And if you forgo preventive care, when you need care later, you will be denied health care insurance or charged high premiums for preexisting because without prveventive care, you will have no record to prove you had no preexisting.

Dan From Mira Mesa

(San Diego)

How Stupid Has the Democratic Party Become?

Republicans haven’t taken over red states; Democrats have lost them by not running as real Democrats.

That’s my big takeaway from Alec MacGillis’ fascinating look into the biggest political mystery of our time: why poor white people in red states are not bothering to turn out to vote, leaving the field to Republicans elected by more affluent whites in those states.

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