I will take this to mean that, no, you are not interested in understanding the role of the Supreme Court and the Constitution.
I guess like Joe M, you don’t know what the Constitution says, never read it, but you are quite certain it protects those “rights” with which you agree, but not those “rights” that you oppose.
Life is much simpler that way.
we’ve had this discussion before, but…
is it your opinion that the substantive rights contained in the constitution(vs. procedural guidelines) must be validated by an act of congress that, typically, will follow popular will? supposing there was an absolutely clear violation of the constitution–say congress passed laws in accordance with constituents’ wishes(most of them) saying that women could no longer vote. is it not the supreme court’s role to step in and overturn that legislation even if it counters popular opinion? or would women have to convince congress to repeal the law?
Boy, now that is a tough question. Hmm, let me see:
Amendment XIX
The right of Citizens of the United States shall not be denied or abridged by the United States or by any state on account of sex.
Tough call, but it looks vaguely like the law you describe is in direct conflict with the Constitution, so it goes.
Saying otherwise would be as stupid as the Supreme Court’s looking at the First Amendment that says “Congress shall make no law … abridging freedom of speech” and concluding that Congress can make a law abridging freedom of speech in the 60 days before an election.
Sorry, I just remembered that they actually did that, but, hopefully, you get my point anyway.
The setup of the Constitution is pretty clear. It is primarily a restriction on government. It says, for the most part, Congress can’t do this and Congress can’t do that.
You can take it to mean whatever you want. You will either regardless of what I actually say anyway.
For the record, I asked your for an explanation of your assertion, but apparently it was easier to just throw an ad hominem insult instead. Talk about keeping life simple.
ok, then what if congress repealed the civil rights act as applied to women and then passed laws saying women couldn’t be engineers, attorneys, or doctors. can the women challenge that law in court? what result? can the court say that’s no good or does it need to defer to congress?
I can’t answer all of those questions well, but for the most part Congress can not say that individuals can’t engage in professions. Really their only hook into trying to exert that right would be their right to regulate interstate commerce.
That right of Congress has been expanded enormously by a long line of bad decisions by the Supreme Court. One of the most agregious was their ruling that a farmer who grew his own grain for his own consumption nevertheless could be regulated by Agriculture laws passed by Congress because his usage “affected” the interstate market. A fair reading of the Constitution though, would preclude that.
I can not make the same statement about whether states could pass some of those laws. I simply do not know the answer to that.
Obviously government can pass laws treating the sexes differently. Try using the women’s locker room, if you want first hand experience in that matter.
If the old Equal Rights Amendment had passed, the answer to all of those questions would be a definite no. Presumably, you would be able to use the women’s locker room too. I imagine gay marriage would have then become a constitutional right as well.
ok, so the states pass those laws(gender discrimination in teh work place not based on physical differences, but rather on a notion that women were inferior to men) rather than congress. could the court invalidate them or would they just have to defer? can the court enforce substantive rights in the constitution, such as equal protection even if the laws were in line with popular opinion?
what if the congress said that drug distribution was punishable by branding an “d” on people’s cheeks? 51% of the country thought it was a good idea. could the court invalidate those punishments based on “cruel and unusual punishment”?
or even more generically, district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer? what if the court is unanimous the whole at every level?
** district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer?**
Either I’m misunderstanding that, or it’s a stupid question. If there’s a constitutional violation, nobody says the courts should defer. The question isn’t what the courts should do when there’s a constitutional violation, it’s that the courts have been refusing to defer even when there is no constitutional violation.
what if the court is unanimous the whole at every level?
Irrelevant.
Sorry, I simply don’t know that answer when you ask the state questions. Obviously the Court can enforce equal protection, Amendment XIV, Article 1.
Since that punishment has never been imposed before and there is no reason to think that authors of the Constitution considered that acceptable at any time, that punishment would certainly be a candidate for cruel and unusual.
I don’t understand your last question since there are no specifics.
I get a real laugh out of the Equal Protection arguments. Coming from an angle you might relate to, Equal Protection was one of the major reasons underlying the ending of the counting of ballots in Florida in 2000. Give me a break, my rights in Broward are violated if Palm Beach Country continues to count votes? Get real.
my impression of art’s position is that there is little role for the supreme court. if there is a non-obvious constitutional issue, i.e. potential equal rights issue vs. denial of voting rights based on gender, it seems as if art believes that the court should defer to congress’ views as shown through the legislation they see fit to pass. as if the default position should be deference to congress.
i disagree. the court’s job is to interpret the constitution and give teeth to substantive rights contained in the constitution. it’s not to defer to congress on close issues.
and the reason i threw in the unanimity factor is that art, in the past, has indicated that a wide consensus from the court(s) is indicative of a more credible decision that flies in the face of congressional acts.
the question in my hypothetical really boils down to whether women would have substantive rights contained in the constitution to preclude such gender discrimination in “professional” fields and whether you’d view a decision invalidating, again hypothetically, 29 state laws enacting such discrimination. or would the women have to bide their time by lobbying their state legislatures to change the law for a change in those policies to be considered legitimate?
or to go back to the standard issue on this board, you have a real problem with gays seeking redress in the courts for the gay marriage issue. but if something is unconstitutional, it’s unconstitutional regardless of how popular it is or whether congress enacts laws stating otherwise. it is the court’s duty to act in those cases if someone brings the case before them and they shouldn’t defer to the whims of congress.
Usually the term substantive rights means rights that aren’t in the Constitution, but which the person using the term really think ought to be in there so the Court should find them in there. (In a pinch, penumbras and emanations work well.) The first such case like that to my knowledge was the Dred Scott decision. That one didn’t turn out so well when seven southern judges found a substantive right to slavery.
Again, I wish I could answer your state questions better. I simply can not.
Bans on gay marriage are simply not unconstitutional. The word gay and the word marriage don’t even appear in the text. We can all sit here and make up substantive rights all day long. If you want it in the Constitution, you really have to pass an amendment.
I concede that legislatures can and do pass lousy laws, just as Courts make lousy decisions. Just because a law is lousy, doesn’t mean it is unconstitutional.
I don’t understand the shot about my not finding a need for the Supreme Court. It was their job to uphold the black letter of the law of the First Amendment and strike down Campaign Finance Reform. They didn’t do it. Then again, it was Bush’s job to veto it, and he didn’t do that either.
The Court upholds laws in direct violation of the plain meaning of the text, and they strike down laws unaddressed by the text of the Constitution. Gee, I wonder why judges get criticized?
my impression of art’s position is that there is little role for the supreme court.
My impression is that Art is closer to being right than you are.
The court’s role is obviously to interpret the Constitution, and deferring to Congress on “close issues” has not much to do with anything, as far as I can see. But not every issue is addressed by the Constitution. Lots of issues, in fact. If an issue isn’t addressed by the Constitution . . . there’s no legitimate court role.
ok, equal protection. what’s that mean?
cruel and unusual punishment. what’s that mean?
due process. what’s that mean?
those are all issues addressed by the constitution.
“equal rights. what’s that mean?”
Where is “equal rights” in the Constitution? Obviously when talking about something like “cruel and unusual punishments” the courts have to interpret what that means. As for due process, the Constitution says “without due process of law” so, I suppose, as long as the law is followed, due process has been met. No interpretation required.
and i think it’s ridiculous to frame issues so narrowly. equal protection is broad. due process is broad. cruel/unusual is broad. just to name 3. to think that issues or phrases that aren’t mentioned specifically within the constitution, leaving aside gay marriage for a second, couldn’t be subsumed in perfectly logical, reasonable fashion within those terms explicitly mentioned within the constitution.
to state that every specific issue before the court must appear exactly in the constitution or that new issues can’t arise that fit perfectly well within the substantive rights guaranteed by the constitution means that the constitution’s restrictions are relegated to a specific meaning at a very specific point in history and thus their meaning/importance fades as time passes, leaving it all up to the good graces of the legislature.
to state that substantive rights are usually things that aren’t found in the constitution is not a logical argument. equal rights = a substantive right. free speech, freedom of religion, right to bear arms, freedom from unreasonable searches and seizures, no cruel/unusual punishment, etc. are all substantive rights. it’s the court’s job to enforce those, regardless of unpopularity of the decision or current moral sensibilities.
sorry, equal protection.
“sorry, equal protection”
Well, again, the document says “equal protection of the laws.” So long as any given law is applied equally to all people, that requirement is met. It doesn’t say every citizen should have the same exact status or rights under the law. Just that the laws, once passed, must be applied equally.
As I said, you can make up any specific rights you want with that logic. Right to slavery in Dread Scott. You can make up a substantive right for me to marry my son if you want. Equal protection for sure. You can get a really euridite judge to come up with penumbras and emanations, and that judge will be lauded so long as his penumbras agree with the mainstream press.
Should his penumbras differ from their agenda, of course, he will be a right wing extremist.
By the same logic, you can come away with Congress shall make no law to mean Congress can make a law. You just need a sufficiently brilliant jurist to explain why.
You want to leave policy decisions to the good graces of unelected, unaccountable judges. Then, you no doubt blame the other side when you are shocked, shocked that the judicial confirmation process falls apart.
On the other hand, if you just insist on the model in which judges dispassionately apply the law, rather than make up new law according to their personal policy preferences, life gets pretty simple.
It must be nice to read the Constitution with your mindset. Every time you read it, you come away very pleased to find that it agrees with your opinions in every detail. When your opinions change, fortunately, so too does the Constitution.
right, but when is the law being applied equally? does it just have to have neutral language? what if there is neutral language but the law only affects a certain subset of people and was specifically intended to affect those people? do they have equal protection?
look, i am perfectly willing to accept that a judge might say denying same sex marriage is not an equal rights violation. i’d disagree, but i’d accept it, no problem.
and i am perfectly willing to accept that certain laws will affect/inhibit certain groups and be perfectly constitutional. but i find it ludicrous to argue that some of the items i have listed aren’t susceptible to more than one interpretation nor that new issues couldn’t arise which aren’t specifically mentioned in the constitution yet fall squarely within other, broader clauses or sections of the constitution.
i fail to see how the constituion has any relevance outside of a historical document if the broader elements can’t apply to contemporary issues…