Boy, we’re gonna have to get right down to fundamentalism here. OK.
I hold that the highest purpose of the Constitution is to provide a framework for a governance of, by, and for the people. Pursuant to this goal, every effort is to be made to ensure political egalitarianism. Any effort to advance that idea is inherently Constitutional, by definition. If supporting text is at hand, so much the better.
What definition would that be, and where can it be found in the Constitution? If, as I suspect, it cannot be, why should it be accepted as an underlying principle, especially considering the decidely UNegalitarian nature of our bicameral legislature and electoral college, for instance?
If there is any area in which fundamentalism is justified, it is constitutional law. Otherwise we have a de facto dictatorship by those who would interpret it to suit their whim, in which case THEY are the “supreme law of the land”, not the Constitution.
We will be governed either by laws or by men. What’s it gonna be?
Baaaap! Fallacy of excluded middle. Unacceptable. Mebst.
Any fool can find an apparent logical anomaly and slap a high-falutin’ term of derision on it. If you think we can simultaneously have a government of laws and a government of men (i.e., men who view themselves as above the law rather than subject to it), show me how.
Comparing a belief in general fidelity to the text of the Constitution with religious fundamentalism is simply profane. Shame on you.
I have never – not here, not in other threads, never – suggested that Constitutional provisions did not require interpretation. Clearly, they do. A literalist interpretation of the equal protection clause, for example, would invalidate pretty much every single law ever written, because the law depends on classification and differing treatment based on that classification. Not even the most strident of strict constructionist hewes to the kind of literalism embraced by the religious fundamentalist. **
This is simply Not The Way It Works ™. The constitution was not brought down on stone tablets off of a mountain by men speaking to flaming shrubbery. Constitutional interpretation is not an exercise in spiritual englightenment. It’s the task of interpreting the text of a particular document, and nothing more. When a court says something is unconstitutional, it is saying it violates some particular provision of that document, and nothing more.
Even the most liberal of constitutional scholars recognize this, which is why you have remarkable elasticity given to the due process clause and series of provisions in the Bill of Rights allegedly emanating a penumbra. No jurist or scholar suggests, as you do, that the text of the constitution is unimportant, mere “gravy” when it can support a given preconcieved outcome.
Nothin’ “high-falutin’” about it, its simply means that you posit that there are only two possibilities. Ain’t so.
You mean something like a sitting President is directly enjoined by the Congress from funding a foreign revolutionary movement, i.e. Reagan? Or a sitting President refusing a lawful order from the Supreme Court, a la Andy Jackson? It has happened, has it not? And has the Republic collapsed?
Oh, piffle. I had said no such thing, and you are not nearly dumb enough to believe that I did. Your rhetorical device is beneath you, sir.
I won’t debate whether Reagan acted illegally in that case, but if he did, the action of Congress was, at least in theory, an instance of law doing the governning rather than the President.
Not familiar with that one, so I can’t comment.
It is collapsing, in case you hadn’t noticed. We have SCOTUS citing international law in violation of the supremacy clause in Lawrence v. Texas, and Judge Myron Thompson excercising legislative powers in the Roy Moore case, among other things. Next thing you know we’ll be providing special courts for the enforcement of sharia law in the Muslim community as Canada is doing - under the aegis of what’s left of the first amendment, no doubt.
And yours beneath you, sir. I know an attempt to tar with the fundie brush when I see one.
I’m as strict a constructionist as you’ll find on these boards, and this bit has become one of the more absurd shibboleths of conservatives. I wish they’d stop, because it’s a stupid point.
Judges have been citing to other jurisdictions as persuasive authority since time immemorial. No judge or justice of which I’m aware has cited to international law as controlling authority. And therein lies a tremendous difference.
The former is simply saying “this is an issue we haven’t addressed before; let’s look at how other jurisdictions have handled it and see if we find their reasoning persuasive.” The ultimate judgment still lies with the judge.
The latter means “we have to rule a certain way because we are bound to do so by stare decisis.” The judge lacks discretion.
It would indeed be troubling if courts had been doing the latter. But they haven’t – they’ve confined themselves to the former.
I could point you to any number of cases where a state supreme court, hearing a question of first impression, has looked to the decisions of sister states for guidance. Sometimes they follow what other states have done, sometimes they don’t – it’s just that, guidance, and nothing more. What the court is doing in these cases is no different.
Dewey, I understand your point, but I don’t believe the difference is as clear cut as you think, especially in a case like Lawrence, where they were, it seems to me, looking for a reason to ignore the tenth amendment.
Thrice piffle and a fie, as well. A simple reading will suffice: I state going to fundamentalism, and then state my fundamentalism: political egalitarianism. Prying that statement entirely out of the political context in which it was lodged, you transmorgify it to an insult and charge the insult to me.
Bandicoots, sir! Tommyrot!
No, it’s exactly as clear-cut as that. The ultimate judgment lies with the court. That they found persuasive arguments used by other courts in other jurisdictions does not change that salient fact.
I am highly critical of the Lawrence decision, but the “we shouldn’t look to what other courts have said” argument is not part of that criticism. Looking to the decisions of other courts is simply part of good jurisprudence. There is nothing inherently wrong with doing so.
’luce: Sure. Whatever you say. :rolleyes:
Agreed, but just why did they need any guidance from other courts in Lawrence?
Because as a practical matter, every case before the Supreme Court is one of first impression: unlike lower courts, they are not absolutely bound by precedent (though they ascribe a great deal of importance to prior decisions, and follow those decisions far more often than they overrule them).
While I agree that the due process rationale the Lawrence court settled on should fail on pure stare decisis grounds due to Bowers v. Hardwick. But having decided to overturn Bowers, the high court is obliged to craft a new constitutional rule, and in doing so they may look to the decisions of other courts for guidance. As long as they aren’t considering the decisions of those other courts to be binding, then they are just engaging in normal jurisprudential activity.
And, of course, the equal protection argument in Lawrence raised an issue of first impression for the court.
What is a “constitutional rule”?
In this case, it seems they were seeking in international law what couldn’t be found in the Constitution.
What difference does it make that they don’t openly declare such decisions binding, when THEIR decision, which seems to me to rely heavily on them as a means of undermining Bowers, is as binding as any decision can be?
A means of interpreting a particular provision of the constitution. For example, a government-imposed distinction based on race must be narrowly tailored to meet a compelling state interest. That’s the constitutional rule used to interpret the equal protection clause in matters of race. **
The Lawrence court did hang their hat on a constitutional phrase: due process. Now I agree that that phrase has been stretched beyond all recognition, and its infinite malleability does a disservice to good constitutional jurisprudence, but that’s quite another argument. **
Well, that’s the point: it’s the Court’s ultimate decision, and no one else’s. They aren’t looking to international law as binding, they’re only looking to it as persuasive authority. But the ultimate decision lays with the Court.
Now as it happens, I think Lawrence was wrongly decided on several grounds. But the decision was still the high court’s, and did not turn on some past decision of an international tribunal. There is much to criticize about Lawrence, but the citation to international law is not one of them.