A government of secrecy and fear -- why Edward Snowden deserves the thanks of every f

[Trapper John]

I really didn't mean to highjack this thread and take it in the direction it's going, but we're taking that trip so I will continue. All I was suggesting is that the actions, rules, regulations, or laws that are promulgated by the NSA and every other agency or State or Municipality are subject to judicial review.

We are a Republic governed by the Rule of the Law and the law of the land is the Constitution of the United States of America. So, rather than look at the issues that we are discussing here through a political lens, let's look at them through the lens of the law of the land.

The Supreme Court is not going to look at something until that something is brought to them through the court system and possibly not even then unless in their view it is a Constitutional matter. Do the actions of the NSA appear to violate Constitutional Law? It most certainly does IMO. Some group or individual that has been damaged through their actions can initiate a suit. Same goes for the recent IRS actions. I am certainly not a constitutional scholar, but at the intuitive level, those actions appear to violate 1st Amendment rights at the very least. IMO, had Little Eddie stood his ground and done as I suggested this whole matter with the NSA could have been turned into a Constitutional Law matter and could have proceeded up the chain to the SC. Unfortunately, Little Eddie didn't have the courage of his convictions.

The issue of judicial activism has been mentioned here too. That borders on a straw man argument IMO. Yes, if a SC decision goes against my political ideology than I can see it as judicial activism. But if I look at the issue through the Rule of Law and then the interpretation of the Constitution rendered by the Court is just that, an interpretation viewed through Constitutional Law, not politics. Let's take one of the most controversial SC decisions of our time - Roe v Wade. Regardless of my view on abortion that ruling protected what is, in my opinion, the most important principle of the Constitution - the right of individual liberty and self determination. I may think abortion is immoral, but to impose that view on everyone through law is tantamount to tyranny.

The recent decision to uphold the ACA under the question brought to the court and the ruling that the ACA is a tax was mentioned as an example too. The SC's ruling on that question was correct, IMO. That it was also considered a tax raises a separate Constitutional question that was not considered in the decision. IIRC, the ACA initiated in the Senate. All tax legislation must initiate in the House of Representatives. Ergo, ACA is unconstitutional because it is a tax. Is anyone paying attention? Yes, IIRC a suit was initiated in CA (I think) last year on that basis. If this case proceeds through the court and SC takes it up-voila, there is existing case law to support the unconstitutionality of ACA.

The Constitution of the United States is not a static document and is subject to interpretation - that's why it lives. The judicial branch of our government was designed to protect the principles spelled out in the Constitution and be devoid of political ideology as far as is possible.

And that is why I say the judicial branch is the last bastion of protection of personal liberties.

BTW, repeal of the 17th Amendment is a helluva good idea IMO. Add a balanced budget amendment and a line such as "Congress shall pass no law that does not equally apply to members of Congress", and there is no need for term limits or a constitutional convention either. That would effectively dismantle the permanent political class.

And one last point, I think a constitutional convention is a very dangerous idea and should be used as a last resort only (it's a nuclear option). The Law of Unintended Consequences would certainly prevail and the outcome is totally unpredictable.

[PSM]

Originally Posted by Trapper John

And one last point, I think a constitutional convention is a very dangerous idea and should be used as a last resort only (it's a nuclear option). The Law of Unintended Consequences would certainly prevail and the outcome is totally unpredictable.

This is a major mis-understanding of Levin's proposal. He calls for a convention of the states under Article 5 of the Constitution, NOT a constitutional convention. Article 5 is the same Article that all previous Amendments have been put forward under and the rules for ratification are exactly the same.

Pat

[Trapper John]

Originally Posted by PSM

This is a major mis-understanding of Levin's proposal. He calls for a convention of the states under Article 5 of the Constitution, NOT a constitutional convention. Article 5 is the same Article that all previous Amendments have been put forward under and the rules for ratification are exactly the same.

Pat

Thanks, Pat, for that clarification. I did not realize there was a difference. Good point.

[tonyz]

You can just hear the DC Bureaucrats with regard to the NSA invasions of privacy... and Obamacare enforced by IRS agents...keep your own doctor, keep your old policy...premiums will go down...etc., etc., etc.,

http://m.youtube.com/watch?v=zOXtWxh...%3DzOXtWxhlsUg

[Stobey]

Originally Posted by Trapper John

The Constitution of the United States is not a static document and is subject to interpretation - that's why it lives. The judicial branch of our government was designed to protect the principles spelled out in the Constitution and be devoid of political ideology as far as is possible.

I must beg to differ with you there, Trapper. The United States Constitution was written to define the limits of the Federal government, and to specifically enumerate those rights given to us by God, not government. The arguments can be seen in The Federalist Papers, among others. It is indeed meant to be a static document, unless revised, and said revision approved by a ratification of three-fourths of the states.

The concept of a "living" constitution was dreamed up by the left in this country who were unable to enact laws they wished to enact any other way. That is why it is important to have strict "constitutionalists" on the SCOTUS. If not, we wind up with legislation by judicial fiat. (Something Robert Bork was decidedly against, BTW.)

Any judge can "interpret" what the Constitution says the way they would like it to read, as opposed to what was actually written. That is why the "Establishment Clause" of the First Amendment was twisted and turned on its head in recent decades to essentially nullify the "Free Exercise" clause. You can thank Justice Hugo Black for essentially writing Jefferson's words of an 1802 letter to the Danbury Baptists: "wall of separation" into the First Amendment, even though those words appear nowhere in the U.S. Constitution. See this article, written by Law Professor Daniel L. Dreisbach on June 23, 2006 for more information on this:

http://www.heritage.org/research/rep...-and-discourse


Think if you declared to your wife that your marriage license was a "living" document that could be "interpreted" and revised at will. I'm sure she would oppose that because she would then understand that it would not be worth the paper upon which it was printed. (I'm using this as an example; but I'm sure you get my point. The U.S. Constitution was meant to be an agreement between the people and their Federal Government. It would not have been revered and held as the "law of the land" if judges in the early years of this country usurped their powers to "interpret" it and revise it at will, as has been happening during the latter half of the 20th century.) Just my $.02, FWIW.

[Pete]

Originally Posted by Broadsword2004

IMO though, there is a difference between having a mistress as Clinton was versus say pulling Nixon and nothing being done.

It never was about the girlfriend - it was the lying about it that got him impeached.

Nixon? Nixon never had the FBI bring over their files on his opponents. Remember Clinton did that.

[Trapper John]

Originally Posted by Stobey

Entire Post

Well argued there Stobey and certainly valid points from a "strict constructionist" point of view.

However, I contend that the framers of the Constitution did not intend it to be a document that could cover all future contingencies in their specifics. Rather, they set down in writing a set of principles upon which and within which future issues could be debated and decided. The fact that an amendment process was spelled out speaks to that intent. That is what makes it a living document and that is why we have a Judicial branch of the government - to interpret the constitutionality of future actions and events.

My point is that the judiciary views issues through a constitutional lens as opposed to a political ideology that is the modus operandi of the legislative branch or by fiat as through the executive branch. The issues we are discussing and have been discussing here are discussed and debated from the point of view of a political ideology. I am suggesting that they all, if not all then most of them, can be reduced to a constitutional issue and decided by the judiciary.

Some of these are clear-cut IMO, i.e. NSA surveillance others less so, i.e. IRS targeting of conservatives and will require a little more creativity to frame the argument. Nevertheless, I believe that this is an overlooked alternative battlefield if the people are so inclined and if anyone is paying attention.

[FlagDayNCO]

There was some discussion about the SC declaring the ACA as a tax. Trapper John mentions the possible lawsuit working it's way through the judicial system, and capable of shutting ACA down based on the legal definition of what branch/ section of the Federal Government can create the tax.

What we may have all missed is with Roberts setting the direction for the Feds to go down the path of taxation, Roberts prevented the Feds from using the Interstate Commerce path.

The Feds have been using the Commerce Clause for years as a catch all for anything and everything coming out of the Federal Monster.

http://www.law.cornell.edu/wex/commerce_clause

Essentially, the Commerce Clause was muzzled again, and the future for State Rights is a little brighter. Roberts laid the seed for the Federal Monster to one day play second to State Rights.

[Stobey]

Originally Posted by Trapper John

However, I contend that the framers of the Constitution did not intend it to be a document that could cover all future contingencies in their specifics. Rather, they set down in writing a set of principles upon which and within which future issues could be debated and decided. The fact that an amendment process was spelled out speaks to that intent. That is what makes it a living document and that is why we have a Judicial branch of the government - to interpret the constitutionality of future actions and events.

My point is that the judiciary views issues through a constitutional lens as opposed to a political ideology that is the modus operandi of the legislative branch or by fiat as through the executive branch. The issues we are discussing and have been discussing here are discussed and debated from the point of view of a political ideology. I am suggesting that they all, if not all then most of them, can be reduced to a constitutional issue and decided by the judiciary.

Trapper, I agree with your point in the first paragraph with the exception of the sobriquet "living document", which has another, very destructive, meaning. That being that in many minds the U.S. Constitution is an old, outdated document written by some dead white men that has no relevance to today's very different and more "sophisticated" culture; and should be "interpreted" based upon the whims of today's jurists.

Your second paragraph states that: "... the judiciary views issues through a constitutional lens as opposed to a political ideology...". I would not be too sure of that. In fact, in too many decisions, it can be plainly seen that many in the judiciary do not view issues through a constitutional lens, but allow their political/personal ideology to "color" their decisions.

A recent example would be the case of California's Prop. 8, which upheld DOMA, signed into law by then-President Clinton. Vaughn Walker, the homosexual judge who heard the Prop 8 case, ruled voters were not allowed to define marriage in their constitution. The state Supreme Court had created same-sex “marriage,” but voters then overturned it. Clearly this judge's personal circumstances and ideology were the basis for his decision. IMO, this judge should have recused himself from hearing the case; but that never happens with "activist" judges.

I know what you are saying, Trapper, and I don't mean to be incorrigible. I'm just injecting a cautionary note that some things, particularly where the U.S. Constitution and the judiciary are concerned in our current age can not - and should not - be taken for granted.

[Richard]

Originally Posted by TrapLine

I explained this same thing to my wife today. I think there has been an ongoing effort by the left through educators and the media to hide the fact that we are a republic. I could be all wrong though...

FWIW - we "educators" teach that the USA is a "democratically-constituted federal republic"...

Originally Posted by Stobey

Trapper, I agree with your point in the first paragraph with the exception of the sobriquet "living document", which has another, very destructive, meaning. That being that in many minds the U.S. Constitution is an old, outdated document written by some dead white men that has no relevance to today's very different and more "sophisticated" culture; and should be "interpreted" based upon the whims of today's jurists.

I'm interested in how one might better define exactly "why" the originators of the US Constitution thought there was a "need" to include an amending process to give it such an adaptive elasticity other than defining it as a "living document"?

Richard

[Scimitar]

Isn't this blurring lines Richard?

As a newbie, it seems obvious to me that the constitution should be approached from a strict point of view, (even more so seeing as we're a Republic), and that the document is only strictly living through the single point of the Amendment clause?

The Amendment clause itself strongly suggests that the document is set in stone, and rules supreme above ideology, until there is enough political will to gain a super majority through one of the amendment paths.

I would say that the amendment clause strongly suggests the document isnt living, hence the need for it.

S

[Trapper John]

Stobey -

I would argue that a strict constructionist view of the U.S. Constitution leads directly to

That being that in many minds the U.S. Constitution is an old, outdated document written by some dead white men that has no relevance to today's very different and more "sophisticated" culture

Using a strict constructionist view women would not have the vote and slavery would still be permitted. Both are alterations of the original Constitution and the Bill of Rights.

The framers of the Constitution did not meander into the realm of social policy, and wisely so in my opinion. Rather, the Constitution is a framework of governance. Nothing more and nothing less. All issues that we are discussing can ultimately be viewed in that framework. As was the case with DOMA that you cited. Whether you or I are for or against DOMA is irrelevant. The question is, is it unconstitutional? To raise the issue of a jurists sexual orientation in those deliberations argues that there is a bias. Does the evidence support such a bias. Wouldn't that also be true of a heterosexual male or female - a presumed bias for DOMA? Then where is there no bias in your view? Personally, I believe that most jurists can separate their personal views from the question they are considering and when they can't most will recuse themselves.

Yes, the Constitutional principles require interpretation, and because that is a human endeavor, it can be and sometimes is flawed. To say that this is a whimsical process on the part of jurists in general or in particular, however, is really invalidating the entire process of judicial review. If that be the case, then what do you propose to replace it?

[Trapper John]

Originally Posted by Scimitar

Isn't this blurring lines Richard?

As a newbie, it seems obvious to me that the constitution should be approached from a strict point of view, (even more so seeing as we're a Republic), and that the document is only strictly living through the single point of the Amendment clause?

The Amendment clause itself strongly suggests that the document is set in stone, and rules supreme above ideology, until there is enough political will to gain a super majority through one of the amendment paths.

I would say that the amendment clause strongly suggests the document isnt living, hence the need for it.

S

Hmmm. Sounds more like a Shariah Law argument than a Constitutional Law argument to me.

[tonyz]

Scimitar,

Take heart, apparently you are not entirely in bad company on the "living" versus "dead" opinion.

Justice Scalia...

http://m.youtube.com/watch?v=DTRe5xDLfXw

http://m.youtube.com/watch?v=imYlSD-...%3DimYlSD-2mrk

[Stobey]

Originally Posted by Richard

I'm interested in how one might better define exactly "why" the originators of the US Constitution thought there was a "need" to include an amending process to give it such an adaptive elasticity other than defining it as a "living document"?Richard

That there was more than one notion of the United States Constitution as a "living document" is what I was alluding to. Justice Antonin Scalia has stated that the Constitution "is not a living document" and is "dead, dead, dead." Also: “The Constitution is not an organism; it’s a legal text, for Pete’s sake...” (1/2013)

However, the most elucidating explanation of the different meanings of the Constitution as a "living document" that I found was from [Chief] Justice William Rehnquist in an article he wrote for the Harvard Journal of Law & Public Policy entitled: "The Notion of a Living Constitution" (1976).

http://www.law.harvard.edu/students/..._Rehnquist.pdf

(I'm sorry for not including it here; but I'm afraid that its length makes that impractical. I've never known a lawyer whose particular talent was brevity.)