NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/or/politics/683

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From: [e-mail] (Steven R Fordyce)
Newsgroups: or.politics,talk.politics.misc,alt.politics.libertarian
Subject: Re: the Constitution (was: Measure 9 in Oregon)
Summary: What are the Constitutional obligations of office holders?
Keywords: law, Constitution, Supreme Court
Message-ID: <[e-mail]>
Date: 18 Nov 92 16:16:53 GMT
Article-I.D.: bug.1134
References: <[e-mail]> <[e-mail]> <[e-mail]> <[e-mail]>
Reply-To: [e-mail] (Steven R Fordyce)
Distribution: na
Organization: Handmade Designs, Salem, OR, USA
Lines: 578

In article <[e-mail]> [e-mail]
(Bil Snodgrass) writes:
<In article <[e-mail]> [e-mail] (Steven R Fordyce) writes:
<>In article <[e-mail]> [e-mail]
<>(Bil Snodgrass) writes:
<>>In article <[e-mail]> [e-mail]
<>>(John Ewing) writes:
<>>>In article <[e-mail]> [e-mail] (Steven R Fordyce) writes:
<>>>>In article <[e-mail]> [e-mail]
<>>>>(Brent Capps) writes:
<>>>>>There are only 5 people in this country whose opinion matters on whether
<>>>>>or not Measure 9 is constitutional, and they all sit at the US Supreme
<>>>>>Court.  No one else's opinion matters.  The Constitution *is* what a
<>>>>>majority of the Supreme Court *says* it is.
<
<Below this statement is a painstakenly long discussion.  I jumped in because
<Brent has a very strong point here.  No matter how many people pass
<Measure 9 (which is losing as I speek!!!) it will end up in court and
<it comes down to five people on the Supreme Court....

And it did loose, as I hoped and predicted.  It didn't loose by quite
the margin I expected (2 to 1), but it was close.

<>>>>I don't mean to pick on Brent here, because a lot of people feel this way,
<>>>>but this attitude really irks me.  Take a look at the oath of office for
<>>>>the President and Congress.
<
<Later on you will hear some wimpering by these folks that I have
<played to rough with them, just remember this above statement
<directed at Brent and remember how "irked" this fellow is!

Wimpering about you playing rough?  Where?  Not me.

<>>The Surpreme Court Justices don't take this same Oath?
<>
<>Why yes, they do.  Your point?
<
<You just seemed to have forgotten about them and their oath to up-hold
<the U.S. Constitution.

Only in your mind Bil.  I didn't mention it because it had nothing to do
with the point I was making, but I certainly didn't forget it.

...
<>>Article III
<>>Section 2
<>>
<>>The judicial power shall extend to all case, in law and equity, arising
<>>under this Constitution, the laws of the United States, and treaties
<>>made, or which shall be made, unter their authority;......
<>>
<>>Please remember that the founding fathers of this country wanted checks
<>>and balances.
<>
<>I never forgot that, or the Constitution.  I'm all for checks and
<>balances.  What have I said that would suggest otherwise?  Nor have I
<>said anything that conflicts with the Constitution as I understand it.
<
<Yes, but you said the President has the right to interpret the U.S.
<Constitution, and he does not have the right.

Actually, I didn't say that.  I'm not even sure what you mean by it.
Who doesn't have "the right to interpret the U.S. Constitution"?

I guess what you mean is that the President, Congressmen, etc. have no
authority to judge the Constitutionality of a law on their own, that
they must defer exclusively to the Courts.  This position is at
variance with their oath, the Constitution, and the rulings of the
Supreme Court.

The sentence you quote above from the Constitution do not mean that the
only people who can interpret the Constitution are the nine on the
Supreme Court.  It doesn't say that.

<>While we are quoting the Constitution, how about this:
<>
<>    Article VI
<>    . . . The Senators and Representatives before mentioned, and the
<>    Members of the several State Legislatures, and all executive and
<>    judicial Officers, both of the United States and of the several
<>    States, shall be bound by Oath or Affirmation, to support this
<>    Constitution . . .
<
<We have no arguement here.....what's the point?

You will note it doesn't say the Supreme Court's interpretation, but
just the Constitution.

<>>I know that people were so horrified when Thomas (who I don't
<>>like either) was sworn in.  It was for life.....Not really the Senate
<>>can impeach a Supreme Court Justice just like they can the President!
<>
<>What has this to do with the subject?  In any case, you might want to
<>re-read your Constitution.  The House has the sole power of impeachment.
<>The Senate tries impeachments.
<
<
<U.S. Constitution... Aritcle I sec. 3 (6)....
<
<The Senate shall have the sole power to try all impeachments.....
<
<Just like I said.  The house can call on an impeachment to take place.
<The House can Charge impeachment, but it won't be until the Senate actually
<impeaches the person brought up on charges by the house.

It isn't like you said.  Look up the word "impeach".  It doesn't mean
what you seem to think it does.  The House impeaches, and the Senate
tries the House's impeachment.  You shouldn't be so quick to say that
other's are in need of a civics class.

In case you don't have a dictionary handy, "impeach" means (in this
case, according to Merriam-Webster) "arraign or cite for official
misconduct."

I think this is what you were trying to say, except for misunderstanding
"impeachment".  Be a man: admit your error.

Article I, section 2, last sentence:

    "The House of Representatives . . . shall have the sole
    Power of Impeachment."

Article I, section 3,:

    "The Senate shall have the sole Power to try all
    Impeachments."

<So again as I stated above, ..."the Senate can impeach a Supreme Court
<Justice...." My point was that everyone goes around like we have to
<live with the Supreme Court  Justices, when we do have an avenue to get
<them the heck out if we don't like them.  Just like you keep saying
<that the President has the right to  interpret the U.S. Constitution
<and I say bull hucky....

Sorry, but you are drifting into the weeds again.  Read your
Constitution.  Congress isn't supposed to get rid of a justice just
because "we don't like them."  The Constitution lists the crimes the
House can impeach on.  The Senate then tries the justice for the crime
in the impeachment.  He is out only if the Senate finds him guilty of
that crime.  Misinterpreting the Constitution isn't one of those crimes.

<>>>He has a duty not to do it.  And even after the Supreme Court rules,
<>>>>the executive still has a duty to uphold the Constitution.
<>>
<>>As interpreted by the Supreme Court.
<>
<>That's not what his oath says.  That's not what the Constitution says.
<>That's not what the Founders said.  Nor is it, to my knowledge, what
<>the Supreme Court has ruled.
<
<I already quoted Article III sec. 2..It is quiet plain....

Yes, and it doesn't say the executive must uphold the Constitution "as
interpreted by the Supreme Court", i.e. only as interpreted by the
Supreme Court.  It doesn't say that.  And neither has the Supreme Court.

...
<>>>>Just because they say it is Constitutional, he is not forced to
<>>>>agree, and he still has a duty not to act unConstitutionally as he
<>>>>understands it.
<
<This is my point.  He does not have the  right to "understand".  I mean he can
<understand all he wants, but if it is unConstitutional and he
<breaks the law with his "understanding" then the House can bring
<Charges of impeachment against him and then the Senate can actually
<impeach him....

The House impeaches, the Senate tries the impeachment.  The House can
only impeach the president for "Treason, Bribery, or other high Crimes
and Misdemeanors.", Article II, section 4.

...
<>>>>Likewise, the legislature or Congress has a duty not to propose or pass
<>>>>unConstitutional laws.
<>>
<>>This is unbelievably naive.
<>
<>You can call it naive all you want, but it is still true.  I know
<>Congress doesn't take this duty seriously . . . that's what I'm
<>complaining about.  I'm not being naive.
<
<Right now there is a push out there for the Freedom of Choice act which
<would allow abortion.  This piece of legislation is being pushed because the
<Supreme Court may any day now strike down the Roe v. Wade.  So Congress
<could pass another law, ie the Freedom of Choice Act, which would
<circum navigate the Supreme Courts axing of abortion rights in this
<country as pretainin to Roe v. Wade.  Sure it too will eventually go to the
<Supreme Court, but that
<is the beauty of the system.  So some would think that in such a
<case as above that Congress would be being unConstitutional because they
<were voting in pro-choice legislation...

Wrong.  No one argues that.  Roe v. Wade (and Doe v. Bolton) ruled that
laws restricting abortion were unConstitutional.  Striking down these
rulings won't make abortion unConstitutional.  Therefore, the Freedom of
Choice Act wouldn't be a challenge to the Court's rulings.

<>>Congress has passed laws which were legal during that time but later
<>>were found to be unConstitutional.
<>
<>What happened?  Did the Constitution change?  You seem to be saying
<>that all laws signed into law are Constitutional until ruled otherwise
<>by the courts.  This is *not* what the Supreme Court has ruled.
<
<It is Constitutional until the court rules so.  Give me an example please...
<I am open to this one....

Unfortunately, I seem to have misplaced the decisions, but the Court
has ruled repeatedly that an unConstitutional law is not law and carries
no weight, not just from the time of their ruling, but ever.  The
decisions I refer to were in a pamphlet or article put out by the Fully
Informed Jury people.

<>If the Constitution means only what a five judge majority on the
<>Supreme Court says it does, no more or no less, what possible basis is
<>there to argue before the Court that an old decision was wrong and
<>should be changed?
<
<It can be done, in a round about way like they are doing with Roe v. Wade
<now...

You missed the point.  Of course it is done.  The Court overturns old
decisions all the time.  The point is it couldn't be done if the
Constitution meant only what the Supreme Court said it meant.  If you want
to read a brief rundown of the basis that can be used to argue a
Constitutional case before the Supreme Court, please read "The Embarrassing
Second Amendment" by Sanford Levinson, in "The Yale Law Journal", vol: 99,
1989, pp 637-659.

<>>The Congress can pass any law they wish and it is the President who is
<>>required to execute these laws if and when they are passed.
<>
<>Is it your position then that, if, for the sake of argument, Congress
<>passed a law over the President's veto that, "Steven R. Fordyce and Bil
<>Snodgrass III, as dangerous, heretical loudmouths, should shutup or be
<>summarily executed, as no defense is possible.", which would be an
<>unConstitutional Bill of Attainder, among other gross violations of
<>the Constitution, that Congress had done nothing wrong, nothing which
<>violated their oath, nothing for which we should hold them accountable,
<>and the President would be bound to execute this law until the courts
<>said otherwise?
<
<Yep!  And the second I was arrested the ball would start rolling in the
<Courts.

You missed the point: you wouldn't be arrested, but simply shot dead.
Your heirs would have to take it to court.

<I don't know if it does take some one to go through
<the Court process or what....(like does the president have
<a straight path to the Supreme Court without going through the
<Court process?)

There is no formal method in the Constitution.  Beyond that, I'm not
sure.

But why would he?  By your own argument, he has no business
interpreting the Constitution.  What possible basis could he have
therefore to challenge a law passed by Congress to the Supreme Court?
In fact, what reason could he have to do it?  What basis would he have
to question the law in the first place?

<>Suppose that we managed to hold our tongues and this
<>law reached the Supreme Court, but they, still hung-over from the
<>all-night "we through-out Row v. Wade" party the night before, treated
<>this "law" with all the seriousness it deserved and issued an immediate
<>one sentence decision, "It sounds ok to us . . . case closed."
<
<Yep!

Then in your mind, in this case, that law would be Constitutional?
Sorry, I don't agree.

<>If we could no longer contain ourselves, would the President then
<>have no choice but to order the Marshals to shoot us until dead?
<
<It has been done.....

When?  In any case, that doesn't make it right or legal.

<>We are supposed to have the rule of law, not the rule of men.  I
<>believe oaths should be taken seriously.
<
<I do too, and I hope they would be.

Your argument makes taking their oath seriously impossible, it seems to
me.

<>Congress clearly violated theirs in my hypothetial example and in
<>that case they should be held accountable for it by the voters.
<
<Which they would be!  Isn't it beautiful (of course if the people
<think all those horrible things about me too then I am
<up shit creek!)

How Bil?  According to you they did nothing wrong, did nothing in
violation of their oath.

<>The problem is that many of the
<>Congressmen, and people like you, would say, "Congress can pass any law
<>they wish" and the only people with any business to gauge its
<>Constitutionality are those nine men on the Supreme Court.
<
<Not really.  The President can go to the Supreme Court also as he
<has done in numerous cases.  Remember that the Executive Branch
<does have the Attorney General who is our Public Proscecuter.  So
<if the President feels something isn't Constitutional then he can
<go to Court, but it is still Constitutional until the Supreme Court
<rules it isn't.

Wrong.  That isn't in the Constitution and it isn't what the Supreme
Court has ruled.

Moreover, how could the President feel a law was unConstitutional?
Wouldn't that require him to interpret the Constitution?  Of course it
would.

<>Sorry, but the Constitution doesn't say that, the Founding Fathers
<>didn't mean that, and the Supreme Court hasn't ruled that.
<
<Sorry, but it does say that.

Where?  It does not say that.

<Bush believes and has fought that abortion is unConstitutional because
<of the Childs life.  Bush truly believes it is unConstitutional and he
<is in Court fighting it, but guess what?! It is still Constitutional in
<this country to have abortions, no matter what Bush thinks....

Wrong.  You are thoroughly confused.  Bush and company do not argue that
abortion is unConstitutional, rather, they argue that state laws outlawing
abortion *are* Constitutional.  See the difference?  The argument is that
Roe v. Wade was wrongly decided, i.e. not based on the Constitution, and it
isn't (read the decision, no attempt is made to ground it in the
Constitution).

For example, if Roe v Wade is overturned, nothing would change in
Oregon.  Abortion wouldn't become illegal.  Nothing would change,
because abortion was legal here before Roe v Wade (as it was in several
states).

<>Likewise, by his oath, the President has a duty, in this case, to order
<>the Marshals not to shoot us.  Let the House try to impeach, it doesn't
<>change what his duty is.
<
<No you are wrong.  The President can order the Marshals to shoot us...

Not Constitutionally he can't.  He doesn't have the authority to give
such an order.  I stand by my statement.

<>You may say that my example is extreme, and it is, but Congress has
<>passed clearly unConstitutional laws, the Supreme Court has approved or
<>refused to rule on clearly unConstitutional laws, and the President has
<>acted in unConstitutional ways.  Sometimes all three have done this
<>together, e.g. the internment of the "Japanese"* during WWII.  When this
<>happens, it doesn't mean the meaning of the Constitution has changed, or
<>that we as citizens have no business complaining or being concerned.
<
<Never said it didn't mean that.  And the people have the right to
<"check" these three groups....

For what Bil?  You've just said that only the Supreme Court can
interpret the Constitution.

...
<>>>>They are oath bound not to do so.
<
<But they did!!!!!
<
<>>Again, naive.....
<>
<>Why is it naive to insist that people live by the oaths they take?
<
<During W.W.II we did a horrible thing to the Japanese Americans.  But
<it was done.  I don't think there was a very good reason to do it and
<it was clearly racially oriented (why didn't they lock up the German
<Americans?)  But it happened.  In hindsight we can see that this case
<and Slavery and Lincoln's disavowment of Constitutional rights during
<the Civil War are all cases that are in hind sight unConstitutional, but
<back then it was supported.  Doesn't make it right, but it happens...

Exactly, but how can we said that in hindsight it was unConstitutional?
Is it only because the Supreme Court overturned its earlier ruling
(that's not even what happened in the case of Slavery; I'm not sure
about Lincoln)?

<>What then is the purpose of the oath?  It would be naive to just
<>blindly believe that since they took the oath that they would live by
<>it, but I'm not doing that.
<
<That is why we needed to install checks and balances....

We have them.  You keep saying "checks and balances" like a montra as if
I challenged them, said we didn't or shouldn't have them.  I never said
or implied that.

I don't think you have thought through the implications of your
argument.  The Constitution is meant to limit and guide the action of
all three branches of government, not just the Supreme Court.  Our system
of government breaks down if Congress and the Executive leave all
Constitutional questions to the Supreme Court alone.

You may think this an extreme example, but it happens elsewhere in the
world.  Suppose our President were to pull a Fujimori (sp?): suspend
Congress and the Courts, perhaps even throw them in jail, or kill them.
Clearly the President doesn't have the authority to do that, but how would
he know that?  That would require interpreting the Constitution.  The
Supreme Court didn't get a chance to rule.  They are all dead or in jail.
The President appoints a new Congress and new Justices and they rule that
the President acted correctly under the circumstances and the new Congress,
mindful of what happened to the last one, rubberstamps what the President
wants.  By your argument, all of this is ok, the Supreme Court ruled it so.

Clearly, it doesn't matter what that new Court rules, the President in my
example exceeded his authority and acted unConstitutionally.  This is what
is meant by the rule of law.  This is why we say the Philippines under
Marcos, or Panama under Noriega are not democracies in spite of the fact
they had some of the trappings of democracy.  They didn't have the rule of
law, but the rule of a man.  This is why it is important that everyone in
government understand the law, especially the Constitution.  They have an
obligation not to violate the Constitution no matter what the President, or
Congress or the Supreme Court say.

In my view we are slow working our way down this path, away from our
Constitution and the limited government the founders therein envisioned.
Congress and the Executive are increasingly leaving all Constitutional
questions to the Courts.  It isn't the job of Congress or the Executive
to continually test the limits of their power in the Courts, to see
what the Court will let by, yet that is what we have.  Sometimes the
Court checks the other branches, but not always, not enough.  Government
routinely does things that are clearly unConstitutional.

...
<>>>>In both cases I think the oath of office is largely ignored.  Congress,
<>>>>the President, and state office holders ignore their responsibilities and
<>>>>leave the Constitution to the courts.
<>>
<>>NO, they are ignoring your interpretation.  They are following the law of
<>>the land, that thing called the U.S. Constitution.....
<>
<>Is it your position then that after the Supreme Court has ruled a law
<>unConstitutional, there would be nothing wrong, no ethical problem with
<>Congress changing a few words, but doing nothing to change the reason
<>the law was ruled unConstitutional, and passing it again and again?
<
<They could do this.  It would be stupid for them to, but they could...

You didn't answer the question.  I didn't ask if they could do it (they
have done it), but if there is nothing wrong, no ethical problem in
doing it.  By your argument, there would be no reason to avoid doing
it.  Congressmen could always say, "How could we know the law was
unConstitutional?  It is the Supreme Court's job alone to interpret the
Constitution."  This is in fact what Congressmen do say, and what I have
a problem with.

...
<>You may think this unlikely, but it has happened and recently.  Congress
<>passed a law against flag burning that they knew full well the Supreme
<>Court would rule unConstitutional, because it just had.  In fact, the
<>people who wrote the bill hoped the Court would.  The Democrat leadership,
<>bless their bleeding hearts, hoped to head off a Constitutional Amendment
<>against flag burning which they were afraid would pass if they didn't pass
<>a law.
<
<Actually they created this law so they could go home to the voters
<and say, well we voted a law in, but the Supreme Court ruled against
<us.

It was that too, but it was also what I said.  Either way, that doesn't
change the issue.

...
<>They figured that by the time the law had been ruled
<>unConstitutional, the hysteria would have died down and they would be left
<>with no law on flag burning, which is what they wanted.  It was a clever
<>ploy and it worked (but not before someone was charged with the law).
<>Although in this case I strongly agreed with the goal, I must condemn the
<>method.
<
<I cannot believe Congress would go against the Constitution with such
<a law.  So in my opinion when they created the flag law they were
<clearly voting in a law which was unConstitutional!!!!

?  I'm not sure I understand you.

<>You might agree with what was done in this case, but I can easily
<>imagine less happy cases.  If there is nothing to prevent Congress from
<>re-passing unConstitutional laws, then they can effectively subvert the
<>Constitution and deprive people of their Rights.
<
<No they can't.  Most states have recalls.  You are being very radical and
<you are really depressing me by your far out assumptions of what ifs...

You are forgetting the example I gave.  Congress (knowingly) passed an
unConstitutional law.  People went to jail for breaking it (burning a
flag).  They were deprived of their Rights.  I didn't hear about any
recalls being started against any of the Congressmen who voted for it.

<>You can't get out of this by saying that the Supreme Court has interpreted
<>the law in this case, and Congress has to follow it.  By your own argument,
<>why should they?
<
<Yep, especially if the executive branch favours the Supreme Court's decision.

What do you mean?

<>You just told us that Congress may pass any law they like
<>(and clearly, they can, but I'm not discussing what they can do, but what
<>they should do and what they have a duty to do and not do), and that it is
<>[not] the Supreme Court alone that is to judge a law's Constitutionality.
<
<Yep.  The President cannot say, "hey that law is  unconstitutional.  Sorry
<he/she just cannot....

Why not?  He can say he doesn't have the Constitutional authority to
carry it out, which is the case with my example (the law involving
shooting us).

<>>>>This is not the way it is supposed to be. But until we start holding
<>>>>our elected officials accountable, it won't change.
<>>
<>>But I think the we in this sentene is the "you" of this opinion....
<>
<>What?
<
<Well it is very clear tonight that "throw the rascals out" wasn't a
<very successful event....Everyone complains that we don't hold
<our elected officials accountable, but on the regional level we do.
<Congress constantly gets poor poor ratings by the public.  But the
<vast majority of people support their choices as far as representatives
<go....So as of tonight, the 'you' is a small minority...people
<have once again voted and for the most part the rascals weren't thrown out.

I can't figure out what this has to do with anything I said . . .

...
<>>*These people really scare me Brent.  They profess to uphold the Constitution
<>>but they no nothing about it.....
<>
<>Ah, but you know, not only the Constitution, but what we know too.  You
<>are an amazing fellow Bil.  If you are so clearly on the side of the
<>Angels in this, by virtue of your superior knowledge and reasoning,
<>then you should have no trouble dealing with the points I raise more
<>substantively, instead of simply belittling John and I.
<
<I feel that the only thing you find belittling is the fact that I have
<questioned some of your opinions.

No, I have no problem with my opinions being questioned.  I was
referring in part to this:

    Read it, you might then be able to understand how our
    government is suppose to work.


<And yes I am a little amazed that you could have been so far off.  Two
<cases, the president has the right to interpret the Constitution and
<the house Impeaches?!

Well, in the second case I am inarguably correct.  In the first, I said
that the president has a duty to uphold and support the Constitution*
and that he has sworn an oath to do so.  I am right and this you do not
dispute.  I say that this means he should not enforce an
unConstitutional law.  You say he must wait until the Supreme Court
rules it unConstitutional, i.e. he must enforce the unConstitutional
law until then or a law is not unConstitutional until ruled so.  I
don't agree and I have justified my position . . . you have yet to do the
same.


* Actually I didn't get the words quite right.  He actually says, "I do
solemnly swear (or affirm) that I will faithfully execute the Office of
the President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States.",
Article II, section 1, last sentence.  It amounts to the same thing.
--
orstcs!opac!bug!stevef          I am the NRA              Steven R. Fordyce
uunet!sequent!ether!stevef         . . .              Deer are for Dinner