Alan Keyes and "Declarationism"

[Borodog]

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Which were not published until 1840. If Madison felt the deliberations of the Convention were critical in assessing "original intent," he would have published them. He specifically said, "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character." Not once during his long career as a congressman, party leader, secretary of state, or President did Madision rely on the authority of his Notes.

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Just saying we have them, so we aren't totally in the dark.

[andyfox]

We also have records of the debates in the press over ratification, so we know what issues people were talking about.

What I'm saying is that what we don't have is any idea of what the "original intent" was because there was no one original intent. It's a construct that never existed. To say, as Keyes does, that the purpose of the Constitution was to codify what was in the Declaration of Independence, is just plain wrong.

[John Kilduff]

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Was it Madison, in the quote cited in one of Borodog's posts in this thread?

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I read in said quotes thoughts regarding one branch not having more power than the others, but not a specific caution against potential tyranny by the judicial branch. It well might have been Madison, though.

[John Kilduff]

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Legislatures could vote on the proper interpretation for the specific matter under their jurisdiction, or a referendum could be used to vote on the proper interpretation of the specific matter for the jurisdiction.
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I think voting on the meaning of the Constitution as applied to specific matters (voting either by legislature or by referendum) would be a fairer method than allowing nine appointed lifetime justices to make binding interpretive rulings against which there is no external recourse.

The government, after all, is supposed to be by the people and of the people.

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I think there are good reasons that legislatures don't interpret the constitution, and allowing them to rule on the constitutionality of their own legislation would lead to all kinds of potential abuses. Checks and balances and all that.

I think allowing the general public to vote on matters of constitutional interpretation also seems fraught with danger. I don't want public opinion determining the correct interpretation of the 1st amendment. Or the 4th. Or the 5th. Or the 14th. Conservatives would be equally unhappy if we put the meaning of the 2nd amendment up to a vote.

Should Congress be able to pass a law that says police don't need a warrant to search the home of a Muslim citizen suspected of a crime? They could "interpret" this to be within the bounds of the 4th amendment. It might even pass a referendum. I don't think preventing this type of "tyranny fo the majority" via judicial oversight is necessarily at odds with a government "by the people."

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It just occurred to me that your hypothetical problem could also be turned on its head. What if SCOTUS were to decide in favor of such interpretations and then all States were required to abide by that interpretation. A central judiciary power can decide things in a bad way, too, such as supporting something like slavery. At least if the States are able to make their own interpretations, there remains some geographical escape.

[Kaj]

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Which Founder cautioned against a binding judicial interpretation of the Constitution, warning that it would in effect make the courts an unanswerable and highest power in the land, thereby laying the groundwork for tyranny by judiciary?

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First, what would your alternative be if the SCOTUS wasn't final say on constitutionality?

Second, even if SCOTUS is final say, that does not make them the highest power in the land. SCOTUS can say anything they want regarding constitutionality but unless law enforcement and legislation recognize it, it will be moot. When the court ruled that segregation was no longer permissible in public schools, it wasn't a judge in robes sending troops to the South to make sure blacks got into their school without incident.

[John Kilduff]

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Which Founder cautioned against a binding judicial interpretation of the Constitution, warning that it would in effect make the courts an unanswerable and highest power in the land, thereby laying the groundwork for tyranny by judiciary?

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First, what would your alternative be if the SCOTUS wasn't final say on constitutionality?

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Explicated earlier in this thread... [img]/images/graemlins/wink.gif[/img]



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Second, even if SCOTUS is final say, that does not make them the highest power in the land. SCOTUS can say anything they want regarding constitutionality but unless law enforcement and legislation recognize it, it will be moot. When the court ruled that segregation was no longer permissible in public schools, it wasn't a judge in robes sending troops to the South to make sure blacks got into their school without incident.

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That's another way of looking at power, a valid outlook in its own way, but I don't think law enforcement and legislators are anywhere near ready to revolt against high court rulings...Generaly speaking, the highest power in this context I take to refer to the highest power in accord with law.

[Kaj]

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That's another way of looking at power, a valid outlook in its own way, but I don't think law enforcement and legislators are anywhere near ready to revolt against high court rulings...Generaly speaking, the highest power in this context I take to refer to the highest power in accord with law.

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Not sending troops to enforce a law is not the same as revolting against a law. And in fact, if the Prez didn't send troops, he would still be acting within the law -- a law itself does not bind the Prez to enforce it with troops. So, the Prez still has the final say when it comes to how much effort to enforce a law -- combine that with his power to pardon anyone for any reason he sees fit thereby making a law moot (and in doing so, he is still acting within the law), then he's still the highest power in the land (in terms of overriding SCOTUS).

[John Kilduff]

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That's another way of looking at power, a valid outlook in its own way, but I don't think law enforcement and legislators are anywhere near ready to revolt against high court rulings...Generaly speaking, the highest power in this context I take to refer to the highest power in accord with law.

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Not sending troops to enforce a law is not the same as revolting against a law. And in fact, if the Prez didn't send troops, he would still be acting within the law -- a law itself does not bind the Prez to enforce it with troops. So, the Prez still has the final say when it comes to how much effort to enforce a law -- combine that with his power to pardon anyone for any reason he sees fit thereby making a law moot (and in doing so, he is still acting within the law), then he's still the highest power in the land (in terms of overriding SCOTUS).

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Isn't all of this aside from my point somewhat? I can think of nearly infinite variations on such themes, but he executive branch flat-out disregarding the rulings of SCOTUS is not something that I recall occurring in recent memory nor is it likely to occur in the foreseeable future.

SCOTUS can also strike down as unconstitutional laws passed by legislatures.

SCOTUS has the highest legal power in the land and I think it's confusing the issue to compare it to brute force when one branch refuses to accede to the law. This discussion was about one branch of government having more power than any other wasn't it? I suppose you could actually argue that the military Generals have the most power too, but we're not talking about revolutionary scenarios but rather where all branches are following the law. Under those conditions, the judiciary branch clearly has more power than either of the other two branches and I doubt that's what the Founders intended.

[Kaj]

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SCOTUS has the highest legal power in the land and I think it's confusing the issue to compare it to brute force when one branch refuses to accede to the law.

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I didn't say anything about use of brute force to fight the law. I mentioned the Prez's power to enforce or not enforce the law based on his own judgment. And his ability to pardon at will. Both of these powers are well within the legal framework of our govt.

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This discussion was about one branch of government having more power than any other wasn't it? I suppose you could actually argue that the military Generals have the most power too, but we're not talking about revolutionary scenarios but rather where all branches are following the law.

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Again, the Prez's power to enforce the law and ability to pardon are within the legal framework of our govt. A General leading a revolution is not. Wrong analogy.

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Under those conditions, the judiciary branch clearly has more power than either of the other two branches and I doubt that's what the Founders intended.

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You've asserted this several times and I gave you reasons why I might disagree with your assertion. I don't see how the judiciary "clearly" has the most power of the 3 branches. Of the 3 branches, I think there's a strong case that the judiciary is the one that operates most as the Founders intended while the other two have diverged from their initial roles far more severely. We apparently disagree on this point. But merely repeating your assertion does not invalidate my position.

[Kurn, son of Mogh]

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"SINCE THE original intent of the Constitution was to ensure through law what the Declaration expressed in principle"

Keyes does not know what the original intent of the Constitution was; nobody does. The guys who framed it were at each other's throats inside of ten years because they themselves disagreed about what was intended.

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Not to mention the fact the the DOI was a PR document meant as an excuse for insurrection. [img]/images/graemlins/cool.gif[/img]