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July 26, 2012

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NK

I'm reminded of Justice Robert's bio when he was being confirmed as an associate Justice. when was the head of appeals at a big DC law firm-- he handled a stautory appeal where the firm's client was appellee, they had won at District Court and the Circuit. SCOTUS reversed 7-2, and the client lost a gigantic amount of money. The corporate general counsel and CEO fly into meet with Roberts and the relationship partner, and they scream what every losing client screams-- "How could this possibly happen??!!" Everyone looks at Roberts who says: "well, 7 Justices of the SCOTUS voted against you, and only 2 Justices voted for you."

NK

Marbury cuts both ways. Appellate Jurisdiction? it is a theoretical possiblity that Congress abolishes all Article III lower courts so that SCOTUS can only hear cases of Article III original jurisdiction. It is also a theoetical possibility that Congress bars appeals to the SCOTUS to limit or prohibit appellate review power from those lower courts. But to what end? Marbury, still gives those lower courts the Constituional power to decide what constitutional power the POTUS and Congress have.

AliceH

NK Do you see any difference between your view of "the Constitution means what the SC says it means" differ from those who support a Living Constitution? If so, how?

NK

AliceH@1:56- absolutely. 'Living' is BS, it pretends the actual constitutional text doesn't exist. SCOTUS as decider? completely different. BUT-- my explanation will have to wait to the weekend. work demands.

JM Hanes

NK:

"The prohibition of using the standing army in the territorial US is statutory, not constitutional-- Posse Comitatus Act."

That may be true enough in terms of explicit codification, but given your apparent attention to "frankly" considering the framers' intentions, I should think that Posse Comitatus would look like an entirely logical extension of their Constitutional prohibition on maintaining any standing army at all. Such balancing of federal vs state powers seems a lot more consistent with Constitutional provisions than the kind of juggling it takes to pit the 2nd Amendment against magazine capacities and tear gas canisters.

Have Blue

How many legs does a dog have if the Supreme Court says a tail is a leg?

Ignatz

Marbury does not cut both ways jurisdictionally.
Congress has the explicit enumerated power to limit the jurisdiction of all lower courts to issues it believes are appropriate for judicial review and to limit the SCOTUS's jurisdiction similarly, outside of its explicit and enumerated original jurisdiction.
Congress has exercised that power in the past and as my first link demonstrated, SCOTUS has explicitly acknowledged that power.

There is no serious argument to be made otherwise that I've seen; the only limit has been each party's fear of where the process ends when the other party is in power, if indulged indiscriminately.

JM Hanes

NK:

"'Living' is BS, it pretends the actual constitutional text doesn't exist."

I think we're entering cognitive dissonance territory here. You, yourself, are actively ceding the very ground upon which living constitutionalism stands, when you imbue SCOTUS opinions, and only SCOTUS opinions, with absolute Constitutional force. The modernist camp would be the first to tell you that the framers could never have conceived of things like 100 round magazines, and assert that striking a "balance" between constitutional text and contemporary realities is a legitimate function of the Court.

AliceH

--I think we're entering cognitive dissonance territory here.--

Yep. Similarly, two earlier comments in this same thread by NK:

1) “limiting commercially available magazine size would force a mass killer to stop and use a new loaded weapon or reload the first with the spent magazine.”

2)“agreed that the mass murder (who by my definition is mad BTW) won't be stopped by any laws.”

One is compelled to think the arguments are not being made in good faith.

NK

JMH/AliceH-- you guys have lost the plot about living constitution and the difference between the inability to stop a madman and mitigating the damage the madman can cause by limiting commercially available weapons --utterly. Utterly and completely. More this weekend.

NK

Ig@2:42-- your ultimate point is correct, Congress will be careful about limitng Article III jurisdiction because both sides can play the political game. But Marbury adds to that limited Congressional control; unless Congress bars jurisdiction entirely, or dissolves all lower Article III courts entirely, so the only Fed Court is SCOTUS hearing original jurisdiction Article III cases, whatever jurisdiction they do give to lower federal courts will allow those courts to decide the extent of their jurisdiction grant from Congress per Marbury. So Article III is a very blunt and inexact Congressional power. The Framers were geniuses at checks and balances.

AliceH

Okey dokey.

I hope you cover the bit about how limiting commercially available weapons to the law abiding will both not stop criminals from obtaining them AND will mitigate the damage done by them. I admit you have utterly and completely lost me with that one.

Ignatz

--whatever jurisdiction they do give to lower federal courts will allow those courts to decide the extent of their jurisdiction grant from Congress per Marbury--

To the extent I understand that statement it sounds wrong.
Marshall explicitly determined that congress had unconstitutionally extended SCOTUS's original jurisdiction, which determination recognized SCOTUS's protected powers were limited solely to the explicit original jurisdiction stated in Article III Section 2. Implicit in that decision is that all appellate jurisdictions are at congress's discretion.
A court can attempt to assert a jurisdiction congress wishes to deprive it of and has, but its ability to make it stick is entirely dependent on congress's acquiescence. If congress so chooses it will always have the last word in such cases, which is doubly true if congress's and the executive's interests align on the issue.

NK

Ig@3:26-- I thought you were going to make that point. The RESULT of Marbury is as you stated. The "Holding" of Marbury is that the SCOTUS/ArtIII courts are the arbiters of the meaning and constitutionality of Congressional enactments. Marshall wisely invoked the power of Article III judicial review in a case where the Court would not impose a remedy on the POTUS -- ie pick a fight -- marbury never got his commission. To do that he engaged in a little bit of Robertsian Obamacare sleight of hand in interpreting the Judiciary Act of 1789. The holding of arbury means that Congress will pass the Fed Court jurisdictional laws, but the Article III courts shall determine what the enactment means and whether it is constitutional.

Ignatz

--The holding of arbury means that Congress will pass the Fed Court jurisdictional laws, but the Article III courts shall determine what the enactment means and whether it is constitutional.--

And if push comes to shove that court will be defunded or the judges impeached, if congress so chooses.
The federal courts have exactly as much power as congress wishes to grant them, regardless of what the courts declare their powers to be. That congress is discrete in wielding its power does not diminish that fact, as the courts well know.
Marbury may be used in an attempt by the courts to adjudicate their own jurisdictions but the plain words of the Constitution survive silly court overreach whenever the other coequal branches assert their real, enumerated powers, not ones made up out of whole cloth.

NK

All true-- all of these discussions ultimately wind up at the point of the checks and balances the Framers built into our Constitution, and why constitutional 'absolutes' are few, and instead the Constitutional interpretation lends itself to balancing in reaching results. Balancing the is completely different than a 'Living" Constitution, Sunday for that.

JM Hanes

NK:

"you guys have lost the plot... Utterly and completely."

Since I've been responding directly to points that you, yourself, have been making, and regularly referring back to your ostensible prescription, I'd suggest that you just don't recognize where your own plot line is going, or how many potential wrong turns and slippery slopes there are along the way to your desired destination -- notwithstanding the earnestness of your desire to save lives.

The difference between preemption and mitigation is not hard to grasp, although you have yet to make a constitutional distinction between them. If you want to argue that the purpose of a corrective is more significant constitutionally than the nature of the corrective you seek to impose, have at it. So far you seem a lot more interested in picking a fight over the Court's power to place limits on our constitutional protections than in mounting any compelling constitutional defense of the actual limits you supposedly have in mind.

If you believe that your weighting of potential collective risk versus risks to individual liberties, and your absolutist (!) view of the Court's authority to "implement" the Constitution by majority decision wouldn't be wildly applauded in Living Constitution quarters, you would be seriously mistaken.

JM Hanes

Ignatz:

"The federal courts have exactly as much power as congress wishes to grant them...."

A whole lot of people don't realize this. I know that fact came as a surprise to me, when you pointed it out back in what probably now qualify as the Olden Days.

JM Hanes

"Balancing the is completely different than a 'Living" Constitution,"

Your missing word could almost be be a Freudian slip! Balancing inter-branch governmental powers, of course, is a far cry from balancing the individual and putatively collective rights of the people themselves. The latter endeavor is precisely where the LC train leaves the station.

Ignatz

--A whole lot of people don't realize this. I know that fact came as a surprise to me, when you pointed it out back in what probably now qualify as the Olden Days.--

I wonder how many people in congress realize it, JM.

BTW I'd like to add I enjoy arguing this stuff with NK.
I think a lot of the problem is he stays in lawyer mode and ends up arguing as something of a devil's advocate for the system and the world as they are, not necessarily as he wishes they were. Sometimes I think people take what he's arguing as his own personal position when it quite possibly isn't.

JM Hanes

Well, since I appear to be home alone....

Obama's latest executive order is un-fucking-believable:

President Barack Obama is backing a controversial campaign by progressives to regulate schools’ disciplinary actions so that members of major racial and ethnic groups are penalized at equal rates, regardless of individuals’ behavior.

His July 26 executive order established a government panel to promote “a positive school climate that does not rely on methods that result in disparate use of disciplinary tools.”

“African Americans lack equal access to highly effective teachers and principals, safe schools, and challenging college-preparatory classes, and they disproportionately experience school discipline,” said the order, titled “White House Initiative On Educational Excellence.”

Welcome to the American transformation.

boris

"Balancing inter-branch governmental powers, of course, is a far cry from balancing the individual and putatively collective rights of the people themselves."

Having any part of the government exclusively invested with interpreting the plain English of the constitution makes it far too easy for collective interests to interpret away its protections of individual interests.

So I much prefer the position that SCOTUS gets it wrong sometimes to the assertion only they know what it means.

NO_LIMIT_NIGGA

I think a lot of the problem is he stays in lawyer mode and ends up arguing as something of a devil's advocate for the system and the world as they are, not necessarily as he wishes they were

Someone who demonstrates ignorance of the topic being discussed, elides inconvenient history and laws, and repeatedly misrepresents the opposition arguments being made ('because') is not being any kind of Socratic "devil's advocate" trying to spur vigorous debate.

That person is simply a lying, ignorant weasel.

Now perhaps NK's being a lying, ignorant weasel in the service of a position he doesn't really believe in, but that seems unlikely.

Ignatz

--Someone who demonstrates ignorance of the topic being discussed...--

Has anyone else demonstrated omniscience?

--elides inconvenient history and laws--

And no one else has done that either?

--repeatedly misrepresents the opposition arguments being made--

Ditto?

Guess the place is crawling with lying, ignorant weasels.

NO_LIMIT_NIGGA

Has anyone else demonstrated omniscience?

Speaking of misrepresenting arguments...


--elides inconvenient history and laws--
And no one else has done that either

Not in this discussion, no.

--repeatedly misrepresents the opposition arguments being made--
Ditto?

Other than you in response to my comment, no, not that I've seen.

Feel free to point out specific instances of either occurring if you believe they exist.

Druid

Jumping ~500 posts here to the end...

Up around 02:30pm 26JUL2012 "NK" posted,

"High volume magazines, we now know, pose a risk."

Ummm.

NO, WE do not now know that high volume magazines pose a risk.

Thank you very much for your mere opinion, which may eventually be established as being based upon a single fact.

As actuaries, engineers, and scientists may as well pretend, what is the rate of correlation between "high volume magazines" and incidents of mass-murder, and is there a causal effect (i.e.: for the dullards out there, surely not you, what causes the owner of a "high volume magazine" to commit mass murder)?

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