It’s not that I think your position is inconsistent, or even somehow factually wrong (the history seems sketchy but it doesn’t actually seem to amount to a lynchpin of your position), it’s that I don’t understand what you think is actually going to happen that’s different. The Constitution lays out the appellate (review) powers of the Supreme Court (Article III § 2). In your mind, what does this power actually consist in? Can you give an example of how the Supreme Court could exercise its power to review lower court decisions in your model? I mean, what would actually be in review?
Additionally, if you do not address it in your response there, can you explain what is meant by this part of the aforementioned section: "In all the other cases before mentioned, “the Supreme Court shall have appellate jurisdiction, both as to law and fact…”?
Approximately 2 millennia ago, a Jewish fellow had a point to make about the difference between the letter of the law and the spirit thereof. The Jewish people had a great respect for the wisdom embodied in their book of law; they took it quite seriously.
Now, I should emphasize early on that this guy, Jesus of Nazareth, held the law in the highest esteem himself. But he had disparaging things to say about people who oh so carefully managed to stay technically on the right side of the letter of the law while living in violation of the spirit that it embodied. He also spoke at some length, and acted in illustration, on the topic of how one should be in alignment with the spirit of the law even where & when the letter of the law did not make a specific recommendation.
Lest anyone think this is out of context, I would put it to you that at the time these events transpired, there was no such thing as separation of church and state; this WAS the law. And the perspective he brought forward has relevance to any and all document that, under any human circumstances, are ever intended to guide or constrain human conduct.
PS: probably unnecessary to add, but you never know… obviously the fact that some dude named Jesus of Nazareth expressed this opinion does not make him right. No appeal to authority intended here.
It would review lower court decisions on cases arising under the Constitution, i.e. having to do with enumerated rights. IOW, it would refuse to accept cases having to do with abortion rights (for example), because the right to regulate abortion belongs properly to the states, or the people.
A plaintiff would always have to be able to point to a specific clause in the Constitution enumerating whatever right was under dispute. Else the Court would politely tell him to bugger off.
Obvioulsy, this could be abused. The Freedom of Choice Act currently languishing in committee purports to find that the right to abortion is guaranteed by the interstate commerce clause. To which the proper response is “if you believe that, I got a bridge in Brooklyn you might be interested in”. If a Court were silly enough to pursue it, it might then be time for Congress to exercise its right to make that case an exception to the appellate jurisdiction of the Court.
Maybe I don’t understand the question.
It is making a distinction between cases affecting ambassadors and the several states, where the Supreme Court has original jurisdiction - that is, such cases come to the Court directly. For"all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies 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, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects", the Supreme Court is a court of appeals.
This is modified by the Eleventh Amendment. Is that what you are asking?
I would be glad to, if you could please first cut and paste where I said that the meaning of the First Amendment was obvious. Thanks in advance.
Wrong. In Kelo, the holding was that municipalities (who traditionally have eminent domain power, as agents of the state, which as soveriegn has that power) can do so for the benefit of private developers.
That’s a different thing. It’s NOT giving the developers either the right or power to force you to sell. It leaves a government in the way (and if you have trouble with who they’re using eminent domain for, un-elect them).
It seems you are saying that there is a qualitative difference as regards First Amendment coverage between ‘speech over the Internet’ and ‘Ephrem Zimbalist, Jr., danc[ing] naked in Macy’s window on New Year’s Day.’
Well, the constitution notes that unenumerated rights might exist, and are not impugned by the enumeration of rights.
So if such unenumerated rights exist, they are of “the people”, correct?
As in all of them.
Hence, state-level enforcement makes little sense-as it is asking for inconsistency. And I hope you’ll agree that if there are other rights “of the people” that the constitution recognizes exists (and the ninth is, at least, recognizing they can exist), they would be rights all the people are entitled to, yes?
And hence, you’d need a remedy if state X denied someone one of these unenumerated constitutional-level rights. Something that a state court couldn’t address. If only we had a court, supreme over all others, that could hear cases “arising under the constitution”–it could resolve such problems.
And if you think the difference between rights and powers is a meaningless semantic quibble, don’t you find it interesting at all that the Ninth amendment talks about rights, in reference to individuals, and the Tenth about powers, in reference to states (and the people)?
No, I don’t, since the power to establish new rights is a power, and is granted to the states, or the people. So whether you want to claim that the power to force people to sell is a power, or the right to the quiet enjoyment of your property is a right, neither is properly the business of the Supreme Court.
And to whom does the power to establish these rights (which are of the people) belong?
You’re begging the question in assuming that a right exists. The power to determine if it does or not belongs to…
So let me get this 100% straight. Your position is exactly opposite of those who argued against the Bill of Rights, for whom the Ninth and Tenth Amendments were made as concessions, based on the text of the Ninth and Tenth Amendments? IOW, now that some rights are enumerated, it is only those rights that the federal government can have a say in protecting. Without the First Amendment, the Supreme Court could not take a position on the federal government ordering the content of a sermon or newspaper article? Ultimately, which is it: are we to look at enumerated rights, making the rest of the Constitution delimiting powers worthless, or are we to look at the delimited powers, making enumerated rights worthless? Because they can’t both be meaningful. If the government doesn’t have the authority to work against free speech, it doesn’t have it, and no Amendment will change that. Given your other comments I feel comfortable that you’d not object here. And yet, strangely, you’re also suggesting that the federal government, as represented by the judicial branch, can only actually deal with explicitly stated rights, even though their mere mention doesn’t actually grant any additional power.
I must admit things are no clearer for me on your position.
But this is not a recipe for a limited government; it is a recipe for virtually unlimited government.
I don’t know what to say here. The interstate commerce clause has been a source of almost unlimited government power.
Well, the rights wouldn’t be “established”-as coming under the ninth amendment, they are pre-existing. Rights are rights-sometimes, they aren’t enforced/recognized in their final form for a long time (See XIV, or II).
And I’ve answered your question already. Whoever evaluates a right exists has to be a federal-level body, as the rights are “of the people”-and hence all people, not just citizens of a specific state. Courts are the bodies that traditionally protect rights-as they’re the antimajoritarian element of the government-the one that is to protect rights against the tyranny of the majority.
And, as the ninth amendment does protect these rights, they do “arise under the constitution”.
Furthermore, you’re just meandering when you say I beg the question of whether the rights exist. The ninth is pretty clear that they CAN exist. Do they? I’d argue there are some things (a basic right to autonomy, for example), that clearly do.
But even if you start with the premise that none have been recognized to date, I think it’s absurd to argue they cannot exist-goes against the clear text of the ninth amendment. And only by arguing that such rights cannot exist can we eliminate the need to have some body adjudicate if they exist. (funny word-“adjudicate”-it sounds almost like what a “judicial” body would do).
Do they? As you rightly note, somebody has to be the judge of whether such rights exist and are protected.
I’m saying the supreme court. 1) Federal right-so whoever does it has to bind all the states. 2) Arises under the constitution. Jurisdiction. 3) Traditional role of judges-hence, reasonable to hold it is within the “judicial power”. 4) not committed to either other branch.
They are called natural rights, surely you’ve heard of the concept; and if you haven’t you really shouldn’t be attempting to debate the Constitution, nor Enlightenment political thought in general. In the Founder’s view natural rights exist by virtue of being born, no one “establishes” them.