Senator Charles Schumer wants to know where Supreme Court nominee John Roberts stands on Roe v. Wade. So do I. The problem is that if Roberts says what everyone already knows--that the Constitution doesn't forbid states from outlawing abortion--Schumer and every other liberal will do just about anything (including filibuster) to stop him from sitting on the high bench. On the other hand, if Roberts says the Constitution made abortion a right that the federal government can't take away--no different from freedom of speech or freedom of religion--then his benefactors become his malefactors (at least some of them do). The best thing for him to do is shut his mouth. So he does and will.

When Ruth Bader Ginsburg refused to answer questions on Roe v. Wade and other controversial legal topics, Democrat Senators didn't object. Now that the shoe is on the other foot, many Senate Democrats have a different perspective on the prudence of judicial nominees remaining silent on matters likely to come before the court. Might it be wise for Republicans to rethink this tactical muteness too? Demanding that nominees bloviate on cases past and future before political interrogators may prove too tacky. But it is reasonable to desire a nominee with a paper trail to give us an indication of where he stands on federalism, property rights, judicial activism, civil liberties, and other important questions of judicial philosophy. Sorry Judge Roberts, you may turn out to be a great Supreme Court justice, but I don't know that from your two years as a judge. The time for a stealthy nominee is not when the opposition party holds just 44 Senate seats.

If the robed ghosts of Supreme Court Justices Robert Bork, Clement Haynesworth, and Harold Carswell counsel silence, the reality of John Paul Stevens, Anthony Kennedy, and David Souter calls conservatives to demand more information.

Shocking! Schumer, Durbin and Scuba Ted Kennedy don't like Roberts!?? The Democratic obstructionists are so amazingly predictable.

The Republican Senate better grow some ganads and use them on this one.

Um.. I would say that we should trust W. on this one, maybe he knows something that we don't. But that is what I said a few years ago about the WMDs.

Still, I'll put money on the fact that Roberts wants to overturn Wade.

I think it's next to impossible to tell where Roberts stands on the abortion issue based on his public statements and writings. But here's an interesting fact: his wife, Jane Sullivan Roberts, is a member of "Feminists for Life"--a group dedicated to overturning Roe v. Wade.

Of course, it would be wrong to attribute his wife's opinions to him and vice-versa. However, this is something he will probably be asked to address at the senate confirmation hearings.

That's an interesting bit about his wife's affiliation. I think that is cause for guarded optimism.

I've also read that Roberts' answer during his 2003 confirmation - that nothing in his personal beliefs would prohibit him from applying the precedent of Roe v. Wade - says nothing about his position on Roe as a potential Justice. Appelate judges are bound to uphold the precedents of the Supreme Court.

"Appelate judges are bound to uphold the precedents of the Supreme Court." Ralph, I disagree with this principle. (1) Morally, they take an oath to the constitution and the USA, not to dead justices' opinions. (2) Practically, how could the court ever reverse itself if no lower courts challenged their precedents?

This indicates that Roberts is either a real institutionalist about precedent (He would get a "lump in [his] throat" before the SC ... gag me with a spoon!), or practical enough to know that getting ahead requires applying even bad precedent and bowing deferentially before the mistakes of dead justices. I pray the latter.

Short: "I disagree with this principle."

In that case, you are "disagreeing" with the United States Constitution.

Reader: Where does the US Constitution say that appelate court judges have to merely apply SC precedent even when, in the judge's best judgement, that precedent is inconsitent with the constitution? If you can find it, I'll mail you ten dollars.

Short:

Article III, Section 1.

No need to mail me the $10.

Quote it.

No wait, "Reader"-- I'll quote it, in its entirety. Article III, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Maybe you just got the wrong section? Hmmm. Keep looking.

Article III, Section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Short is right on the Constitution, of course, but I've now read and heard from several media sources the same view that lower courts cannot overturn Supreme Court precedents. There must be some legal theory underwriting this position or reporters would not be asserting it.

Are you guys really that dense? Or are you just being argumentative? Let me know, please.

The Section I quoted is the relevant section. It vests judicial power in a SUPREME COURT. The courts under the SUPREME COURT are INFERIOR COURTS. Do you know what the words "supreme" and "inferior" mean? Try this website if you need help: http://www.dictionary.com.

When writing that section, the founders figured that people would be smart enough to understand that an "inferior" court has to defer to a "supreme" court. And, indeed, for the last 200+ years judges on lower American courts have understood that very principle and have drawn on Article III, Section I to stand for the proposition that a lower court must follow the precedent of a higher court.

This is a long-standing, immutable, principle of American Constitutional Law. Scalia and Thomas recognize it. Roberts recognizes it. Even the media understands it and recognizes it. Yet somehow you two seem befuddled by it.

Specifically, where are you confused? Maybe I can help educate you two. Heaven knows, your past teachers have failed. Hopefully I'll have better success...

Reader: Isn't the Constitution superior to the Supreme Court? If it is, then shouldn't the lower courts defer to the Constitution when it conflicts with the Supreme Court?

Reader gets more insulting the more trouble he has supporting his position. You're resting your case on the definition of "inferior."

A private is "inferior" to a general, an FBU agent is "inferior" to the president, a employee is "inferior" to the employer. But if the "superior" makes a decision or gives an order that is ILLEGAL then the "inferior" has a duty not to inforce it. The inferior court judge takes an oath to the constitution not to the SC, and if SC precedent conflicts with the constitution, he shouldn't apply it.

Wow. I feel weak. It takes an amazing amount of brainpower to combat Reader's reasoning.

Dan Flynn:

The Supreme Court has the final say on how the Constitution is interpreted, much the same way the Pope has the final say on how the teachings of the Bible are to be interpreted by the Catholic Church.

Lower courts must uphold the Constitution, but in doing so they must rely on the Supreme Court's Constitutional interpretations. In other words, if the Supreme Court says that something is constitutional, then that thing is constitutional irrespective of what judges on lower courts might think. It's a basic hierarchy system, where judges on the bottom must defer to those on the top.

A judge could not say that he is following the Constitution rather than the Supreme Court, because it is presumed that everything the Supreme Court says about the Constitution is right--in other words, the Constitution and a Supreme Court ruling could never be at loggerheads because the Supreme Court's rulings on the Constitution are deemed correct.

One could therefore say that Supreme Court justices live under the papal infallibility rule with respect to their Constitutional interpretations...

Short:

See my post to Dan Flynn. I see what you are getting at with your military an*logies. The basic difference is that the Supreme Court's interpretation of the Constitution is deemed to be correct and infallible--lower court judges cannot argue with it or complain that it militates against the Constitution--while there is no such presumption of correctness when it comes to orders given from higher-ups in the military.

I don't really have that much trouble supporting my position. On my side, I have the Constitution, 200 years of case law, and the teachings of the Supreme Court. On your side you have, well, what?

Reader: 1) you don't understand the infallibility claimed by the Church. In fact the pope's infallibility is a lot more limited than the SC's under your view. But I won't bother with that aside.

2) "It is presumed that everything the Supreme Court says about the Constitution is right." This is where the rubber hits the road between cons and libs on the SC. The SC derives its power from the constitution, and the constitution doesn't grant this presumption of infallibility to the SC (quote it, if you want to dispute this point), and there is no indication by the founders they thought the SC should or would be this powerful (they repeatedly indicated the opposite). So historically speaking, your case is weak. But it gets worse, when we look at the logical implications of your view.

Your view makes the constitution's words irrelevant, because functionally the constitution says what and only what the SC says. Disaster looms: There is no possible decision by the SC about which you can say, "That's unconstitutional!" You have no right to say it. Perhaps they will decide tomorrow that the states aren't permitted to outlaw best-iality, or maybe they'll abolish the House of Representative, or say Congress can make Scientology the official US religion. You HAVE to say "OK."

Final Q: Under what conditions, if any, would impeachment of a justice be valid for you? What would he have to decree from the bench to make it justified?

"The teachings of the Supreme Court"? They're not the legal Magisterium.

Look. The Supreme Court is the final word on any particular case, and their decisions establish precedents; for example, the decision in Roe v. Wade established a precedent for future cases, i.e., that the Supreme Court (strictly speaking, the particular Court that decided Roe v. Wade) could be expected to rule the same way in all cases substantially the same as Roe v. Wade.

It may be the case that a lower court, presented with a new case similar to Roe v. Wade, could hand down a decision contrary to the precedent. The current Supreme Court could always reverse such a decision, which is the whole point of the Supreme Court's superiority. Thus, talk of "inferior" and "superior" in the context of Article 3 is irrelevant to the question "Can lower courts overturn precedent."

It's called parsing issues.

A brief addendum on the way precedent functions: A precedent does not establish a law as an executed bill does. A precedent is the legal implication drawn from a particular decision - the implication is that the Court will rule the same way in similar cases. Legislatures, agencies, etc. change the laws accordingly. If they didn't, the any case challenging the unchanged laws could be expected to decided in favor of the plaintiff.

(Sorry about the length.)
Dan, you have a good point. I also agree with Short. Inferior courts could avoid a slavish application to the rationale of SC decisions. Quite simply, the role of the judges is to apply the law in individual cases. The inferior courts might have a reason to argue that the findings in one case, do not necessarily preclude a contrasting finding in another.

Thus an inferior court could argue to the Supreme Court, "Yes, but you didn't try this case, you tried one like it."

But, just because you have a good point, doesn't mean Reader is offbase. Reader is on solid ground. He's even on firmer ground in a historic sense. In the Federalist Papers, Publius argues that the cons should "belong" to the judiciary to interpret.

However we can as well remember that the FP were a series of editorials. They were not ratified by any state. Perhaps if the states would have thought that they were agreeing to everything written in a New York editorial series when they ratified the Constitution, they would have found more to complain about.

Just imagine if the Federalist Papers had needed to be passed by a committee. In other words, the editorials couldn't just contain the heartfelt arguments of Hamilton and Madison, it would need to be drafted by a committee where everyone struck out language and modified it where they could to make sure that their particular ox wasn't being gored.

If I, as a citizen of New York City of the time, agreed with 90-95% of what H&M wrote, and turned up my nose at the judiciary "owning" the Constitution, should I have believed myself bound to a newspaper editorial if I voted to ratify a document that was free of this language? What kind of "consent of the governed" is such a bait-and-switch scheme?

But this is what we have via the tradition of Judicial Review and SC precedent. In fact, I can see it parallel with an over-reverence that even conservatives have bestowed on the FP.

But I think we can find a way to reconcile the problem. The consent of this governed individual does not cover law by an appeal to Constitutional experts, be they Madison or Hamilton. Here, I'll bring back a theme of anti-polemic that I began with. Just because I will not be wholely ruled by the implications of an editorial series of brilliant writers, does not mean they have no effect or nothing to tell us. It is a good thing that they wrote without the filter of a committee. Many brilliant ideas have been available to the generations through the expression of their reasonings.

But we have lost it if we believe that the interpretation of the FP belongs to anybody in particular! H&M did not write that. And their argument wasn't that the average NY reader would need to have this filtered through experts to know what they meant. Those editorials were written to the people so that they could consent to plan and a rationale of government. But they contain an argument for the Constitution.

It is only by extrapolation-to-absurdity that they have become the rationale of the Constitution. But it seems a natural process that once H&M became the voice of everybody who ratified the Constitution, that it grew into official keepers of the Cons. in every age. People who were all too willing to tell the people what the fine print said when they ratified the Cons that said nothing of the sort and was palatable to a wider group of people because it did not require total agreement with H&M on all points.

But if we must consent by application of the FP, let us at least consent by an even application of their view. The current occupants of the bench, the keepers of the Cons., do not belong to the "weakest" or "smallest" branch of government.

The liberals own argument works against them, here though. If they are afraid, that a single supreme court justice is going ruin the nation, then we are a nation of men and not laws. Checks and balances have failed, and somebody has gotten too much power along the way.

So it seems to me that should we be required, by tradition and civility, to observe H&M's construction of who "keeps" the constitution, we should at least be able to insist that it resembles something of the "weakest" and "smallest" branch.

If H&M were blind or sneaky their editorial suffers to that extent. If they privvately pictured a constitution belonging to the judiciary no matter what, they didn't clue us in.

And I don't think that the cheif value of the Federalist Papers are that it invests ownership of our compact to a group of experts. And were that the truth, it is at least offset by the theme of the consent of the governed. I would expect that this is something that experts have willfully read into it.

The Federalist Papers as well muse about Congress perhaps needing a permanent court of impeachment for judges to keep them in line. Here tradition of sparse impeachments would argue against you, and not an appeal to the FP. But if we must take H&M as the architects of this document, and we hear "checks and balances" lauded, we might be able to spot this as a type of check. Thus one would think that if the SC had one more power than they were officially given, they also have one more check then they were officially given.

We live in a representative democracy. But the chief reason I voted for Bush was that I did not want to see Kerry appoint judges. It is a pretty sad story that some of us now view Congress and the President as caretakers, with their sole striking ability being that they can shape the social agenda by controlling the door to the courts.

"We live in a representative democracy. But the chief reason I voted for Bush was that I did not want to see Kerry appoint judges. It is a pretty sad story that some of us now view Congress and the President as caretakers, with their sole striking ability being that they can shape the social agenda by controlling the door to the courts."

which is why it's so sad that we'll have to wait months to find out whether or not Bush has made the right decision.

Short:

I understand that the Pope's infallability is limited. The Supreme Court's infallability is limited too. The Court is only considered infallible when it comes to issuing decisions on how the Constitution is to be interpreted. That's it.

You're right that the Constitution does not use the word "infallibility." But the Constitution does say that there is a Supreme Court and there are "inferior" courts. This has been interpreted to mean that the inferior courts must look to precedents established by the Supreme Court when issuing rulings on Constitutional issues.

You ascribe this view to me--you say it's "my view." But it is also the view of every Supreme Court justice for the past 200 years, every major Constitutional Law scholar and every judge on the federal circuit courts of appeals. In fact, it's not really my "view"--it's the law.

You provide some humorous doomsday scenarios. As a quick aside, why are you so worried about bestiality? Have an awkward relationship with your pets?

But seriously. Constitutionally, the states have a compelling interest in banning bestiality because of the health issues that would arise. The House of Representatives cannot be abolished because it is provided for in the Constitution. There cannot be an official United States religion because of the establishment clause. So you can sleep soundly knowing that these are things you need not worry about.

In response to your final question, the Constitution provides that Supreme Court Justices serve a life term. On impeachment, I take the same view that United States law takes--basically, that justices can only be impeached for "high crimes and misdemeanors" or some such similar standard.

Ralph:

I'm proud of you! You're learning!

As you rightly point out, lower courts can chip away at Supreme Court precedents. This is not called "parsing;" it's called "distinguishing cases." For example, Roe v. Wade holds that women have a constitutional right to an abortion. But the case does not hold that underage women have a right to an abortion without parental consent. So lower court judges can try to undermine Roe v. Wade by limiting it to its facts and holding that the same constitutional protections are not offered in other situations.

This is basically what good lawyering (and good judging) consists of. There are thousands of precedents out there. The name of the game is to show how your case is just like precedents that went the way you want your case to go, and is dissimilar from precedents that undermine your case.

A lower court judge that opposes Roe v. Wade therefore cannot take the big step of trying to over-rule the opinion. But the judge can say that any abortion issue that comes before him/her is distinguishable from Roe v. Wade, and that some other state interest--such as parental consent--trumps the right to privacy under the peculiar facts of the case.

That is how judges work around Supreme Court precedent that they disagree with.

Sea King:

Nice to know that someone else out there has read the Federalish Papers. Thought I was the only one.

Polemical:

You actually may have to wait years to find out if Roberts is your kind of judge. Remember: the guy is only 50 now and Supreme Court judges are appointed for life terms. Who knows how Roberts will think when he is 60?

Also keep in mind that judges frequently surprise once they are appointed to the Supreme Court. Earl Warren is the most famous case in point. Did you know that he had a conservative voting record as a judge on the California Supreme Court?

For a lot of people, all this is maddening. You really can't tell what a justice will do once appointed, and because of the political nature of the appointment process, a president hoping for a smooth confirmation has to appoint either (a) an apparent moderate; or (b)
someone without much of a paper trail.

This leads to unpredictable--or sometimes even undistingished--jurists. But, hey, on the whole, the Supreme Court Justices do a pretty good job most of the time. Wish I could say the same for the executive branch and the legislative branch.

Let no one be fooled by Sea King and Readers misreading of the Federalist Papers. Hamilton says clearly in 78 that the Court is "inferior" to the people's will. Madison a few years later wrote that the people are the final guardians of the Constitution and that they must not let others add to or subtract from it. The Federalist Papers are important because they, like other documents of the time help us know what the ratifiers intended the Constitution to mean and that intention is the "will of the people" until there is a new formal statement by them through the amendment process.

One last point on "Constitutional Law Scholars" who disagree with Reader. Besides Madison and Hamilton (and of course Jefferson) we have the one who said:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

A. Lincoln

DocMcG,

thank you for the wonderfully edifying post.

Reader: Try reading about my record before writing about it. I never had "a conservative voting record as a judge on the California Supreme Court" because I never served on the California Supreme Court.

Doc, excuse me? I misread Federalist 78?

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." [emphasis mine]
http://speaker.house.gov/library/texts/Federalist/article78.asp

But regardless of that, I spent 10% of my post saying the Reader had a valid, and established point, and the other 90% arguing that slavish adherence to this clause of the Federalists is not democracy, and really a mockery of 80% of other things that Madison and Hamilton say about consent of the governed. If we have a Constitution "belonging to the courts" to the point the the consent of the governed is missed, we are falsely arguing from FP.

And regardless of what the papers say, my other point is that the series of editorials is not what the colonies ratified. It is a singular, even if central, opinion. It has an uncommon brilliance for that, but it is also limited in its ability to represent a consensus by that. And I said that for not being written by committee, it brilliance has been available for many generations.

The will of the people should not be overruled simply because we can read something in the Federalist Papers that seems an unfortunate wording or without long forsight.

In their time, Kings and Parliament marshalled troops against their political enemies. The King chained the doors of Parliament. Parliament had executed a King. Therefore, I'd argue we can interpret their idea that the judiciary lacks the power reflects that the judiciary has nothing (so far) to do with armies. I think that they might have missed that with such a respect for the rule of law bred into a society, that this characteristic restraint could create a rule-by-interpretation.

But the last thing on my mind is to argue that the current court deserves all that that quote implies --if over-read. When I wrote that it is a sad state of affairs to view our elected reps as guardians of real seat of power, I would hardly view that as an endorsement of that reading. It really doesn't matter who wrote it or why.

Reader: I'm not obsessed with "doomsday scenarios." I'm showing you the logical implications of your statements. Now you admit that the SC is not really the last word on the interpretation of the constitution-- the SC could SAY that the constitution demands something that is in fact contrary to the real meaning of the document. Good. We're getting somewhere.

Now, imagine that the SC said that the states couldn't make, e.g., spousal rape illegal, because it was an infringement on the privacy of the family. Now I assume we both agree this would be an abuse of SC power, and that it would be wrong morally and constitutionally, and that even if they based this on the 9th amendment they would be wrong. What would you do? What would you advocate as the political move for the people who think that spousal rape is a terribly crime? Ok, once you think all that through, now you know how the world appears to anti-abortion constitutionalists.

Reader,

I don't find any of what you say in your last reply objectionable. Only recognize that none of it can be reasonably inferred from Article 1, Section 3, which is the subject of our disagreement.

Of course lower courts can "chip away" at the periphery of a Supreme Court precedent, and such decisions can in turn be reversed by the Supreme Court. That's not the issue. The question is whether or not a lower court can OVERTURN a Supreme Court precedent. Can, for example, a lower court completely eliminate the "constitutional protection" of a woman's right to an abortion (for the district in which the case was filed)? Is there some statute that directs lower courts to uphold the precedents of lower courts? Etc.

Mere hand waving at the "superiority" of the Supreme Court as provided by Article 3 is insufficient.

Sea King: a matter of grammar. In the federalist quotation ("It therefore belongs to them [the courts] to ascertain its meaning,"), the 'it' doesn't refer to the constitution, but to the duty of ascertaining meaning.

"Ascertaining meaning" is quite different from "interpretation" as postmods and liberal jurists use the word.

Earl Warren:

Sorry for distorting your record. You're right--you served as Governor of California, not as California Supreme Court Justice. My bad.

Short:

When the Court reaches conclusions that I think are illogical, I just shake my head and laugh. That's all you can do, really. It's not worth stewing over Supreme Court decisions.
It's an easy way to drive yourself crazy.

Ralph:

No. Lower courts cannot overturn Supreme Court decisions. The authority from this I think can quite logically be derived from Article III, Section I.

I'm sure there are also many Supreme Court decisions that speak to this issue. I do not have the inclination to find such opinions now, because it's late and I'm tired. A good starting point might be Marbury v. Madison, since that is the case that perhaps most clearly articulates the role and powers of the Supreme Court.

Reader,

I anxiously await your logical derivation from Article 3, section 1. Be sure not to beg the question, i.e., don't merely assert that "inferiority" and "impotence to overturn" are equivalent.

"I'm sure there are also many Supreme Court decisions that speak to this issue. ... A good starting point might be Marbury v. Madison, since that is the case that perhaps most clearly articulates the role and powers of the Supreme Court."

It seems my warning against circular reasoning came a comment too late. The impotence of a lower court to overturn a Supreme Court precedent cannot be justified by appealing to a Supreme Court precedent. So look up all the cases you like, they won't matter a wit.

Ralph is making a critical point about question begging here. Reader is saying that "the SC has final word in interpreting the constitution, therefore the SC has final word in interpreting what their enumerated powers are as granted by the constitution." But leave it at that and we have a tyranny, pure and simple.

Marbury vs. Madison is a great case to point to as an abomination of constitutional law. Interestingly, Marshall's stupid claim to the power of "judicial review" didn't have much of an impact on how the SC acted until the Dred Scott Decision. Apparently, a decision to which Reader would just "shake his head and laugh" and say "aw, shucks! No use getting worked up over some SC decision!" Well a lot of people rightfully did get worked up over that miserable decision and it helped cause the deaths of hundreds of thousands. Real-life consequences (such as millions of dead babies in more recent times) to really bad SC decisions. They aren't head-shaking "justices will be justices" matters.

(I know this comment is just polemic, so weak argumentation, but it serves for some perspective on the seriousness of these otherwise arcane seeming arguments over constitutional law)

Sea King,

You get it 90% right but your taking Hamilton too much out of context. His next sentences are:

“If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

The true import of the part you quote is that while the courts have to "ascertain the meaning" of laws and so have to ascertain the meaning of the fundamental law as well, all of us are charged with ascertaining the meaning of the fundamental law. Since the people's will is superior the judge must follow it if he finds no way to reconcile it with the legislative act. If a court clearly oversteps its Constitutional bounds as the people see it, they, too, by the same logic, are compelled to follow the Constitution and not the court. (The same would hold true for the President).

If a President consistently defied the Constitution we would demand he be impeached. A Justice is equally guilty if he defies the Constitution.

I may as well illustrate my point. If the Congress decided when reading the constitution that they could establish scientology (as Short suggested) as the national religion the SC would be justified in declaring that law unconstitutional (it is another issue, as Andrew Jackson famously pointed out whether or not they could enforce their stance). The President, as well, would be justified in vetoing that legislation as unconstitutional (hmm, would that mean the president is "interpreting" the constitution on his own?).

But Reader is claiming that if the SC declared that X (where x stands for anything anyone reading this happens to find abominable, like, say, the Designated Hitter) was a constitutional right, then even if anyone disagrees with the SC, including him, as to their interpretation of the constitution in regards X, as the "superior" court and as "the final say on how the constitution is interpreted" we have no recourse and should just shrug and get about our getting about.

Also note that Reader's acquiescence to rule by a committe of black robes is in part premised on interpreting "shall hold their Offices during good Behaviour" as meaning that as long as they aren't getting it on with interns. Although I shouldn't assume that even that would be worthy of impeachment in Reader's view as I don't know where he stood as regards Clinton's impeachment. The authors of the Constitution clearly meant in the parlance of their day that justices must maintain "good behaviour" in terms of there adjudication of cases as well as the broader sense of public or private decorum.

Short, I'm not speaking from my interpretation, but a type of worst case interpretation. Here's the problem: in their vision, M&H offered us no check on who should interpret whether the Supreme Court of the land construes the cons correctly. They are the supreme court, nobody checks their math.

You cannot argue that they have failed to ascertain the true meaning except by resorting to arguing interpretations. And when you do that, you are trespassing on the area that is their prerogative (via FP). But the last part I
quoted, intensifies that reading. Because it suggests that once legislatures make laws, the courts are the authority on that too.

They do not say, well if some of the legislators are living that they remain the primary authorities on what was meant. It says the court becomes the arbiter of laws they had no part in bringing into being.

Again, I think this has a bit to do with tangible abuses of former executives and legislators. And the fear here is that by changing the stated purpose of the law, the legislators could then steer the law after it was passed. Therefore to escrow those laws immediately with another body was a check on the legislative, from steering their own laws for political purposes. But this is as yet a notion of mine, something I throw out there as a possibility.

My point is is that nobody vested with such authority is going to say "No, we were off by a mile, but we don't care." This could be argued to be "Bad behavior" and as a result,if they cared the first thing about retaining a seat on the SC, they will try to put a veneer of legitimacy on the decision.

I've only met him once, but given the chance to speak with Robert Bork, I asked him whether there is always a clear meaning that a strict constructionists can rely upon. He admitted to me that there wasn't. And in our discussion, it seemed that it was mainly, by degrees, that the court could do better than it had. The justices did not use all the methodologies that were available to them.

But if the sitting justices disagreed with Bork's take, even FP does not leave it to Robert Bork to decide how best to ascertain the meaning of the cons. So Bork might be right, but he is not invested with the authority to interpret the cons. Whoever wants to argue against the sitting judges on their interpretation does so without force, in the view of H&M's model.

And I argue the worst-case version because 1) it has been argued. 2) there is no check on the court to not read it that way (by invoking a type of circular logic) 3) it is not a night-and-day difference, but a difference of degrees, and 4) all but the most incompetent or venial justices cannot put up some good facade.

Doc: "You get it 90% right but your taking Hamilton too much out of context."

I'd like to believe you. But I believe that what Hamilton missed there is that the power of the people is represented by the legislature, where we do not resort to direct referendum. Our power over the legislature (although we do a pretty poor job of it) is clear. We elect them, and then we elect other people if they are not to our liking.

Our power over the judiciary is not as clear. By settling the question of the balance of power by referring to the power of the people over both, they fail to give us a clear course for the people to exercise their power over the courts.

Thus I think that by relying on the Federalist Papers, the court invests it with a rigor that it might not have. And I can imagine that in providing some arguments for ratification, the duo did not forsee that they had to work out the whole scheme.

But as long as we can argue that the branches are balanced, we can also argue that the leg. is not inferior to the SC, by dogmatic assertion. Thus they are equal, despite it being the sole job of the court to interpret the cons and overrule the leg whenever it argues it has a right to do so. You might think that this is a lack of balance, but if any of these justices goes around regularly socking police officers in the nose, we can remove them. Some people argue that this is enough of a check (I don't.) that the branches are still in balance (thus comply with an non-inferior leg.). Especially those advocates for judicial activism.

To me, this model is not parallel. The court may overturn the leg. whenever it argues that it should. But in return, the Congress can only have effect if the judge becomes unhinged or commits a crime. Thus, in the course of business, the court can check the leg., but a judge needs to violate some standard of law or decency--usually apart from their decisions--in order to be checked by the leg. And not at all on substance. Thus there is no check that the legislature can have on the interpretation of the Cons., if we read "Good Behavior" as narrowly as tradition does.

But it is the will of the people, working through the legislature, that can be nullified, and again the only pressure the people can put on judges that they can have their elected legislatures remove them for outright misdeeds.

So although, I can imagine, based on many other statements in FP, that H&M would have wanted to provide the people with greater standing, they do not do a good enough job here. They seem to miss that the will of the people is manifest through the elected representatives, when that branch is operating under optimum conditions.

Brian: "The President, as well, would be justified in vetoing that legislation as unconstitutional (hmm, would that mean the president is 'interpreting' the constitution on his own?)."

Just a small comment (I promise): The President would be using the force of law as well as making a constitutional interpretation. But the force is not by interpretation, but through prerogative.

Doc: "If a President consistently defied the Constitution we would demand he be impeached. A Justice is equally guilty if he defies the Constitution."

Hey as long as we are going to rule the country by editorials and letters to irate Baptists, why not stress the permanent courts of impeachment that the Federalist Papers presents as well. Why be so reluctant to charge judges, when FP envisions that Congress might need to set up courts to continually throw judges out onto the streets?

"3) it is not a night-and-day difference [between ascertaing meaning and false interpreatation], but a difference of degrees." -Sea King

I agree with this, as a point about language; there is vagueness, unclarity, and tension in the constitution. But there is still meaning, too. But the fact of the matter is that liberal 'constructionists'--in a postmodern spirit--think there is no firm meaning at all. To them, we are naive for thinking the possible meaning has some rather clear parameters. Their job is not to ascertain meaning, but is to make good decisions for the country. (In Lawrence v. Texas, they aren't arguing about the constitution.) In the same way, the job of a pomo reader of Aristotle is not to ascertain meaning but to invent meaning. And they do so on the excuse you're giving. As though the imperfections of language kept it from working and made it meaningless. But just because there is always some vagueness in the law does not mean that there isn't also meaning.

So what starts out at a "matter of degree" between honest people, turns into a completely different ball game when we start using the words "interpretation" and "constructionism."

Also, why should we rely so heavily on the Federalist Papers, Sea King? Madison wrote the Virginia Resolution too.

I think I see where Sea King is coming from now. From my perspective, Sea King sees through most of the progressive lawyers’ arguments but he is partially blinded by his reliance on two he hasn’t seen through.

First, he has accepted that the Framers intended the “good Behaviour” clause to be violated to only by criminal acts and not by dereliction of duty. This mistake leads him to misinterpret Hamilton and to assent to the mistaken notion that the Framers gave unchecked and sole power to interpret the Constitution to the Court. Short is right to bring up the Virginia Resolution. There, and other places, Madison clearly acts on his belief that the people are the ultimate arbiters of the meaning of the Constitution. Madison did not oppose the impeachment of Justice Chase, or argue against the rationale that Chase had to be impeached because of his improper decisions. The Framers expected tyrannical Justices to be thrown out if they overstepped their bounds. This is the only way Hamilton’s words make any sense in 78 including these words: “For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” (Note that textbooks and Senator Schumer now openly talk about the Justices “making laws.”)

Second, he has accepted the progressive view that the Constitution is a policy guide. If this were true then Judge Bork’s statement that “there isn’t always a clear meaning that strict constructionists can rely on” would seem to leave the judges great discretion. But they were not to have such discretion. As Hamilton said in 78: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” The answer is that the Constitution is not a policy guide. If there isn’t a “clear meaning” then the Court’s job is still clear–not to strike down the existing policy. The Court is only empowered to ignore the acts of other parts of the government and apply the Constitution when by any “fair construction” they cannot “be reconciled to each other” (78 again). If the meaning is unclear, then, by definition, there is a fair construction which can reconcile the two and the Court’s job is plain.

There are some times when the Court must decide an issue of power between two governmental agencies, usually between a state policy and a federal policy. Here, it would appear discretion, is needed even when the Constitutional language is unclear. But such discretion is still not arbitrary. On these issues the documents of the time are clear that the Feds, essentially, only have enumerated powers. If it wasn’t clear, it wasn’t enumerated. Thus, if the meaning is unclear, the decision should go to the states. (I’ll admit that occasionally there is some residual discretion in these areas, Madison indicated that some of the details of the relationship between the states and the Fed would have to be worked out by future generations. But even here the Court has limited discretion; they can only say what other agency has the power to make the rules–not make the rules themselves.)

Ralph:

You need to lay off the crack pipe and instead take a course on logical reasoning. If the Supreme Court holds that its decisions may not be overturned by lower courts, then that is the law of the land. No idea why that is so difficult for you to accept and/or comprehend.

DocMcG that is a very helpful post.

Reader, if Ralph needs a course on "logical reasoning" you are clearly not the one to give it to him. Your tortured understanding of terms and mangled reasonings are making Copi and Cohen blush.

If the SC says lower courts cannot overturn its decisions then that "is the law of the land"? But Congress is given the authority to create those inferior courts, not the Supreme Court. Both in art 1, sec 8,clause 9: "To constitute Tribunals inferior to the supreme Court" and in Art III, sec. 1 "in such inferior Courts as the Congress may from time to time ordain and establish". The "law of the land" is the constitution and then whatever constitutionally licit laws Congress passes and the president signs, not what the SC dictates or decides.

Brian:

Were you hit on the head as a child?

To answer your question, yes, when the Supreme Court issues a ruling that decision becomes binding precedent and lower courts must respect it. Lower courts cannot overturn the precedent merely because the lower courts were created by Congress. No idea how you made the jump from Congress creating inferior courts to inferior courts not having to respect Supreme Court decisions. Explain that one to me, please.

"The 'law of the land' is the constitution."

Thanks for the insight, Brian. You are truly luminous. Now, understand this: it is the Supreme Court's job to interpret the Constitution. The Constitution is a vaguely-worded document. It is up to the Supreme Court to interpret the vague phrases. The Supreme Court's interpretation of the Constitution is the official interpretation--the law of the land. I recognize that you might not like this--wouldn't it be better if Sean Hannity's interpretation of the Constitution governed?--but that is how it is. Hope you can at least get your arms around this point. But that may be expecting too much...

Reader: You pointed to a SC decision as a source of the SC's authority. Brad's right; that's circular.

Here, I can do it myself: "Short has infallible abilities to interpret the constitution." Wow, that's an easy way to get complete power over a country.

Reader,

I'm afraid it is you who need to bone up on logic. The Constitution nowhere gives the Supreme Court the authority you describe. Recognizing this, you have argued that the Supreme Court's authority derives from, wait for it, the Supreme Court's authority. While I'm sure you think this is informative, teachers of logical reasoning call this question begging (just in case you're a journalist, that means arguing in a circle).

Short's claim to absolute power is equally Constitutional, which is to say, not at all. Other absurdities which Short has called your attention to, but you've conveniently ignored include the Supreme Court's deciding to abolish Congress. To this we can add interesting possibilities such as deciding to move the executive branch to Mars, or to paint all the roses red, or to sell Coney Island to Peru. As fun as this game is, it makes for poor jurisprudence.

Be man and concede the argument. You're starting to look silly.

Ralph/Short:

You two are extremely benighted. You don't seem to understand/accept that our founders adopted a common law system. Heck, you probably don't even know what a common law system is.

To help enlighten you two, I will explain. There are two primary legal systems used throughout the world: the civil law system and the common law system. Under the civil law system, the primary sources of law are statutes and codes. Judges make decisions by comparing the facts of a case to a statute or code, and by drawing an*logies from one code and using that an*logy to shed light on the current case. Prior cases (precedent) are given little to no weight.

The other major legal system is the common law system. This is the legal system that Hamilton, Jay and Madison were familiar with as students of the British legal system. They adopted this legal system for our country. Under the common law system, cases are the primary source of law. When adjudicated a case, a jurist looks at prior decisions with similar fact patterns, and uses those decisions as a guide to how the jurist should rule in the present case.

All common law legal systems are hierarchical. There is always a court that sits at the top, as well as lower courts. All common law legal systems also incorporate the principle of stare decisis. This principle has two components: (1) the holdings in prior cases are precedential value; (2) the holdings of the highest court in the land have the most precedential value, and the holdings of that highest court cannot be overturned by lower courts.

The authors of the Constitution--all of whom were familiar with the British common law system--would have shaken their heads if they knew that 225+ years down the road, allegedly intelligent critics of the modern Supreme Court did not understand that the Founders created a common law system, and did not understand that the words "Supreme Court" were meant to signal that that court would have more power under the common law system than the "inferior courts." This would have been cause for uproarious laughter. As smart as the authors of the Constitution were, they would have been dumb-founded by you two. Your stupidity is beyond what they ever could have comprehended.

Try to wrap your infantile minds around this quote from Thomas Jefferson on the common law: "The Common Law of the States of the United States is the Common Law of England adopted by the original Constitution of the United States, so far as not modified by any alterations made by the Constitution of the State at the time of admission to the Union, and so far as not in direct conflict with the Constitution of the United States of America."

In other words, Dumb and Dumber, there is more to American law than what is contained in the Constitution. In fact, our Constitution merely explicates how courts will be created and which courts will have jurisdiction over which matters. Our Founders took as a given that the United States courts would build on top of the common law system that had been developing for hundreds of years prior to the adoption of our Constitution. This was something of a given, and our Founders flagged the adoption of a common law system--incorporating the principle of stare decisis--by their use of the words "Supreme Court" and "inferior courts."

Like me, the Founders would have been amazed that you two are too stupid to understand or accept this.

(1) Jefferson's quote is a reference to the law of the states, not to the law of the union. Otherwise, he would be saying that the entire common law of England was being built in at the federal level--but NB that is simply not true. The federal government simply doesn't deal with the issues usually handled in common law except when that issue is named as under one of the enumerated powers of the federal government.

(2) Yes, yes, despite your repeated insistence that we are dumb as rocks, you still don't get the point. I understand that the SC is supreme over inferior courts (their judgments overrule the lower courts' judgments on particular cases); I also understand that there is a role for precedent in law (there are vague and indeterminate aspects of particular laws and constitutional provisions, so there is need for decision--'determinatio' in the Medieval theory of law--and when a superior court performs such a determinatio the lower court should apply it as the rule).

Here is where we differ: I don't think that precedent (even "supreme" court precedent) has the ability to reshape the constitution in just any given way whatever. (You could say: to me, the constitution is not a embroyonic stem-cell able to produce any meaning that a experimenting-justice tries to educe from it.) On the contrary, when it comes to applying law written by the Congress or in the Constitution, the Supreme Court doesn't have the arbitrary discretion it would if it were in a purely common law system. There is something before them, and it it not infinitely malleable to their wishes. They need to apply it, and they should be impeached if they pretend it says something which it clearly does not.

According to my view, when the Supreme Court is acting in persona of the constitution (and not acting purely in common law), their authority is limited by the text-- they have more in front of them than precedent (as in the common law). Their ability to create precedent is limited by the text; a fortiori, the authority of prior precedent is limited by the text, too. And if prior precedent is really screwed up and in conflict with the text of the law/constitution, it should be absolutely weightless. It should not be applied.

According to your argument, the power of the SC to create law is unlimited. Why? Because you are assuming that the text of the constitution (for all practical purposes) doesn't exist independently of what the SC says about it. Now this assumption of yours is not justified in the constitution (in fact it is in conflict with article III Section 2 para 2, according to which some of the SC's jurisdiction is limitable by Congress). Further, this assumption of yours is not justifiable by any precedent (Marbury v. Madison is begging the question here). This assumption is also disasterous for any concept of limited government.

This is why Ralph and I are using extreme examples of possible SC decisions. We are trying to get you to admit that the SC is not merely the top in the todem pole of common law; rather, the SC is limited by something with authority OVER them, viz., the constitution, which has meaning independent of the SC's decisions. Right now you have no right, logically, to say that the SC would act unconstitutionally if it, e.g., decreed that the states can't make spousal rape illegal, or that Congress is dissolved. (This is called a "reductio ad absurdum." You can call our examples 'unrealistic doomsday scenarios', but we call it an argument which you have failed to rebut.)

3. What to do? In order to answer our argument, you either have to accept the absurd (the SC cannot act unconstitutionally) or accept some constitutional limitation on the SC's authority.

(1) The federal government deals with all the same, relevant issues, at least for purposes of this thread. Those relevant issues include determining the precedent that should be given to a higher court decision, that cases are what judges look to first, etc. Common law cases on stare decisis and the role of judges, for instance, were incorporated into U.S. jurisprudence at the federal level.

(2) "According to my view, when the Supreme Court is acting in persona of the constitution (and not acting purely in common law), their authority is limited by the text."

Well, your view is inaccurate. When the Supreme Court interprets the Constitution, it does not start with a tabula rasa each time. Rather, it must look to how the relevant section of the Constitution has been interpreted by the Supreme Court before. It is bound by those precedents. Occasionally, the Court will consider reversing one of its own precedents--see the "Dickerson" case from 2000, in which the Court considered reversing the constitutional right to have Miranda warnings given before custodial police interrogation. But the Court is very hesitant to reverse prior precedents--of all people, Justice Rehnquist wrote the opinion upholding Miranda in the Dickerson opinion.

You can continue to believe that the Supreme Court should just look at the Constitution and should ignore the last 225 years of Supreme Court caselaw. Well, that is not how it works in a common law system. And, more importantly, that is not how it works in our common law system.

(3) "According to your argument, the power of the SC to create law is unlimited. Why?"

No idea where you are getting this from. You are not smoking between posts, are you? To set the record straight, I don't think the SC has "unlimited" power to "create law." Rather, the SC is limited by two things: (1) the Constitution; and (2) prior caselaw. These two things prevent the Court from making crazy decisions like the ones you and Ralph brought up.

(4) "This is why Ralph and I are using extreme examples of possible SC decisions. We are trying to get you to admit that the SC is not merely the top in the todem pole of common law; rather, the SC is limited by something with authority OVER them, viz., the constitution, which has meaning independent of the SC's decisions. Right now you have no right, logically, to say that the SC would act unconstitutionally if it, e.g., decreed that the states can't make spousal rape illegal, or that Congress is dissolved."

Wrong again. The Supreme Court is limited by two things: (1) the Constitution; and (2) prior caselaw. Based on prior caselaw, the Court would have no grounds for overturning a statute making spousal rape illegal. As to dissolving Congress, the Court does not have that power under the Constitution, so you need not worry about that one either.

(5) "What to do? In order to answer our argument, you either have to accept the absurd (the SC cannot act unconstitutionally) or accept some constitutional limitation on the SC's authority."

Sure, there are constitutional limits on the SC's authority. I don't doubt that. I never have doubted that. The SC is the head of the judicial branch and, as such, is charged with interpreting the Constitution. It is the final say on Constitutional matters. But there are many, many, things the SC cannot do--i.e., the SC cannot declare war. What ever did I say that would lead you to think that the Supreme Court can do whatever it wants? I don't need to explain Separation of Powers to you, do I?

"The Supreme Court is limited by two things: (1) the Constitution; and (2) prior caselaw."

"[The Supreme Court] is the final say on Constitutional matters."

What is this idiocy? Stop chasing your tail. You say the Court is limited by the Constitution, and then that Court determines the meaning of the Constitution. The result is that the Court determines its own limitations. How hard is this to grasp?

As for case law, the Court routinely reverses its own precedents. For example, the Court recently reversed previous Supreme Court precedents in the imminent domain and juvenile capital punishment cases. Indeed, if the Supreme Court was bound (by what?) to uphold its own precedents, there would be no danger of overturning Roe v. Wade.

Your position is incoherent, and the more you defend it, the worse it becomes.

Ralph's right. Reader is begging the question. But that's a slight sin compared to what he does next:

My view is that the SC's "authority is limited by the text" of the constitution; Reader says this view is "inaccurate." 13 sentences later Reader says: "The SC is limited by two things: (1) the Constitution; and (2) prior caselaw." And then repeats, "There are constitutional limits on the SC's authority."

No true set of propositions can contain a contradiction, so we know that Reader's view is false by logical necessity. Not only is his view false of the US constitution, it is false of all conceivable (logically consistent) constitutions.

Ralph:

"Your position is incoherent, and the more you defend it, the worse it becomes."

I'm not advancing a position. I'm telling you how the judicial system operates in practice, because you don't seem to understand that. For instance, you did not know that we live in a common law country, and you were unaware of the principal of stare decisis. I'm here to educate you--not to advance a position.

And educating you is no easy task. I feel bad for your prior teachers--doubtless, many of them are now out of teaching and some of them may have even have hanged themselves.

"What is this idiocy? Stop chasing your tail. You say the Court is limited by the Constitution, and then that Court determines the meaning of the Constitution. The result is that the Court determines its own limitations. How hard is this to grasp?"

You tell me. I've been trying to explain this to you for the last six posts or so. You've just been really slow to understand. I'd put it this way:
(1) the Constitution and the common law are the starting point;
(2) the Supreme Court has the final say when it comes to interpreting the Constitution;
(3) the Supreme Court's opinions are precedent that it must look to when confronted with a current Constitutional issue;
(4) The Supreme Court's decisions are based on its own interpretation of the Constitution as demonstrated in prior caselaw.

"As for case law, the Court routinely reverses its own precedents. For example, the Court recently reversed previous Supreme Court precedents in the imminent domain and juvenile capital punishment cases."

First of all, Socrates, it's "eminent domain," not "imminent domain." Second, it is rare that the Supreme Court overturns its own precedents. It may reverse a holding in a case, but it usually relies on its own precedent to reverse the holding. A perfect example is the juvenile capital punishment case you alluded to. Under Supreme Court precedent, when determining if a punishment is "cruel and unusual" under the Eighth Amendment, a court should look at what (a) the states consider to be cruel and unusual punishments; and (b) what other countries consider to be cruel and unusual punishments.

Relying on that precedent, the Court ruled that executing minors is cruel and unusual in part because (a) many states either will not execute minors by statute or else are hesitant to execute minors in practice; and (b) a majority of countries believe that it is cruel and unusual to punish minors by executing them.

Note that the Supreme Court reached the result by following its own precedents. It did not reverse any of its own precedents, as you wrongly implied, although it did reverse a prior holding due to its own settled precedents.

You may not like how that case came out--which is fine--but you should at least understand that the Court relied on its own precedents to reach its decision.

"Indeed, if the Supreme Court was bound (by what?) to uphold its own precedents, there would be no danger of overturning Roe v. Wade."

There really is not much danger of overturning Roe v. Wade in my view. I am not sure how the Supreme Court would even do it if it wanted to. I guess it would either have to (a) eliminate the Constitutional right to privacy prededent altogether; or (b) somehow sever having an abortion from the Constitutional right to privacy.

I don't think it will ever happen for several reasons. First, there are thirty years of case law built on top of the Constitutional right to privacy and Roe v. Wade, all of which the Court would somehow have to explain away. Second, the Court is EXTREMELY arrogant, and hates to admit it was wrong before. Third, the Court can always dodge the issue by refusing to grant certiorari on an abortion case. Finally, based on what I saw in Dickerson (2000), I don't think the Court will ever take away a Constitutional right that it had previously provided for. Additional Constitutional rights and protections may be added, but it is doubtrul that the Court will ever take any Constitutional rights or protections away.

Short:

I miss the conradiction. Can you please spell it out for me?

"My view is that the SC's authority is limited by the text of the constitution."

OK. This is one thing that the Supreme Court looks to when faced with a constitutional issue, but it is not the only thing. You make it seem like the Supreme Court should just look at the Constitution and then somehow use the Constitution as a clear and obvious guide on how to rule on any Constitutional matter. The problem is that the Constitution is vaguely worded. It is not easily apparent what is meant by "cruel and unusual punishment" or "excessive bail" for example. It is up to judges to give tee+h to those words. Thus, when faced with an Eighth Amendment claim, the Supreme Court looks to prior decisions interpreting the phrase "cruel and unsual." Prior decisions provide precedent--a framework if you will--for how to determine if a punishment is cruel and unusual. The current Court will look to that prior framework and will use it as a guide for how to rule in the present case.

"Reader says that my view is inaccurate."

Fine. Maybe "inaccurate" was too strong. "Partially inaccurate" would be a better way to put it. You are right that the Supreme Court looks to the Constitution when ruling on Constitutional issues, but you miss the role that prior precedent plays in the adjudication process.

Reader,

You got me, I mispelled a phonetically equivocal term. A minor infraction compared to the gross logical incompetence on your part.

Every text is subject to interpretation. If a person or group of persons is THE authoritative interpreter of a text, then the text means what they say it does. QED.

Suppose a decision of the Court were to interepret a clause of the Constitution (any clause whatever) to mean something that it manifestly does not mean, e.g., that the establishment clause entails the ownership of Coney Island by Peru. If the Court is the "final say" on the meaning of the Constitution, it follows that the ownership of Coney Island by Peru is constitutionally guaranteed.

That, of course, is absurd, and your understanding of the Court's relation to the Constitution has thereby been reduced to absurdity.

On your understanding (whether you're intelligent or honest enough to recognize it), it is impossible for the Court to ever misinterpret the Constitution. By what standard could a decision of the Court be incorrect? Not by the Constitution; the Court (according to you) determines the meaning of the Constitution.

A mind is a terrible thing to waste.

Reader,

Don't be obtuse. The contradiction is in plain sight. You say that deny that the Supreme Court's "authority is limited by the text" of the Constitution and then admit that "the SC is limited by ... the Constitution." That's an obvious contradiction.

Your understanding of the Court's relation to the Constitution is so incoherent that you manage to flatly contradict yourself in the span of a couple paragraphs.

Reader,

Concerning precedent: (1) the same problem concerning intrepretation emerges - who is the definitive interpreter of precedent? The Court? Then precedent means whatever they say it does. (2) Suppose a later Court disagrees with a previous Court on the meaning of a provision of the Constitution, i.e., disagrees with the earlier Court's precedent. Is the later Court's direct interpretation of the Constitution subordinate to the earlier Court's interpretation?

Ralph:

I'll reply to your latest posts in order.

First Post: "On your understanding (whether you're intelligent or honest enough to recognize it), it is impossible for the Court to ever misinterpret the Constitution. By what standard could a decision of the Court be incorrect? Not by the Constitution; the Court (according to you) determines the meaning of the Constitution."

Right. Exactly. The Court has the power of judicial review, the Court interprets the Constitution, and the Court's interpretation of the Constitution is definitive. The only way the Court could be said to misinterpret the Constitution would be if a later incarnation of the Court made that judgment.

This is not "my opinion" by the way. This is how it actually is in real life. I am explaining this to you--not trying to advance a position.

"That, of course, is absurd, and your understanding of the Court's relation to the Constitution has thereby been reduced to absurdity."

That is how it is in real life, buckeroo. Complain to the Founders, and to John Marshall (who arrogated the power of judicial review to the Court in Marbury v. Madison). Don't whine to me about it, or accuse me of not understanding how things actually are.

Second Post: "You say that deny that the Supreme Court's authority is limited by the text of the Constitution and then admit that "the SC is limited by ... the Constitution." That's an obvious contradiction."

Short stated that the Supreme Court is limited by the text of the Constitution (but nothing else). I said that was wrong. I said that the Supreme Court is guided by the text of the Constitution AND by prior Supreme Court precedent.

There is no contradiction. I said that Short's understanding was incorrect because it only gives half the story.

Third Post: (1) "who is the definitive interpreter of precedent? The Court?"

Yes, the Court is the definitive interpreter of its own precedent.

"Then precedent means whatever they say it does. "

Right again. Moreover, sometimes the Court will misrepresent earlier precedent in order to reach a certain result--I'm not saying that this is good or bad, just telling you that this is how it is.

(2) Suppose a later Court disagrees with a previous Court on the meaning of a provision of the Constitution, i.e., disagrees with the earlier Court's precedent. Is the later Court's direct interpretation of the Constitution subordinate to the earlier Court's interpretation?

Good question. The later Court could not merely tread down its own path and create entirely new precedent. Instead, the later Court would have to reach its decision by applying the old precedent, or by arguing that the old precedent should not apply to the particular case for some reason. The Court might then create new precedent for that particular factual scenario--i.e., in Eighth Amendment cases involving minors we will use Test X, whereas in other Eighth Amendment cases we will use Test Y. The Court would then explain WHY it is necessary to create new precedent for the particular factual scenario, and would rely on old precedent for the proposition that new precedent may be created.

As you can imagine, Constitutional Law is somewhat complex because there is lots of precedent and vastly different rules may apply depending on the facts of a case.

Again, I am not advocating that this is how it should be--just telling you that this is how it is. If you don't like this, please don't direct insults at me. Don't shoot the messenger!

Reader,

(1) Good. You accept my characterization of your account, viz., that the Court's interpretation of the Constitution (whatever it may be no matter how outlandish, e.g., Coney Island belongs to Peru) is by definition correct. And you accept that your account results in absurdity ("Complain to the Founders...."). Now it's just a matter of demonstrating to you that the Founders were not absurd, i.e., that you are incorrect.

"Complain to Marshall," by the way, is more question begging, but I've given up curing you of that problem.

(2) So you contradicted yourself, and then revised your account to alleviate the contradiction. Excellent work.

(3) "The later Court could not merely tread down its own path and create entirely new precedent." Says who? What is the force of "could not" here? By what authority and by what mechanism would they be prevented from doing so?

Reader,

Please address the following problems with/inconsistenceis in your account:

(A) Interpreting the establishment clause to mean that the Supreme Court has the authority to abolish Congress is no more absurd than interpreting it to mean that Coney Island belongs to Peru. Since you've admitted that the Court could do the latter, could they do the former?

(B) "Sometimes the Court will misrepresent earlier precedent in order to reach a certain result." So the Court can misrepresent precedent, but they cannot misrepresent the Constitution? What's the difference?

(C) Speaking of "the Court" is somewhat misleading in this context. The Supreme Court consists of nine justices who frequently disagree on the meaning of the Constitution. One of the numerous absurd consequences of this given your account is that the opinion of a Justice could be constitutional or unconstitutional, not on its own merits, but solely in virtue of what the other members of the Court believe. That is, if the Justice is in the majority, his/her opinion is correct, if the minority, incorrect.

There are many more, but let's start with these three.

I don't want to distract you from Ralph's substantial questions. But, I never said this: "Short stated that the Supreme Court is limited by the text of the Constitution (but nothing else)." Moreover, I explicitly granted that precedent had some legit role in con law in the post on July 22, 2005 02:47 PM.

You, on the other hand, have repeatedly (though not consistently) DENIED that the constitution limits the constitution's authority. Given your view that the supreme court is the only interpretor and an infallible interpretor of the constitution, this only makes sense. According to the logic of your view, the only "limits" on the court are the ones the court wants to give itself. Thus, nothing external to the court limits the court. The constitution doesn't limit the SC; the "constitution" does. (Isn't this like saying that Saddam wasn't a dictator because he won elections?)

BTW: Thank you for the wonderfully enlightening lessons in legal theory. What a great teacher! In return, I'm enjoying schooling you in intellectual honesty.

Ralph: (response to post one)

(1) "And you accept that your account results in absurdity ('Complain to the Founders....'). "

I am not offering you an account. I am telling you how things actually operate today. I would not characterize this as absurdity. If you wish to characterize it this way, go ahead. What I think is absurd is how bad your understanding of constitutional law is! I also think it is absurd for you to insult me when I am only trying to teach you!

"'Complain to Marshall,' by the way, is more question begging, but I've given up curing you of that problem."

No, it's not "question begging." Your major beef appears to be with the Court's power of judicial review--i.e., with the Court's ability to determine if laws and codes are constitutional. Evidently you do not think that the Court should have this power. If this is your position, then your grudge is with Marshall. He gave the Court the power of judicial review in the Marbury v. Madison case. It is not question begging to point out that I did not grant the Court the power of judicial review, and that the Court derived this power from Marshall.

(2) "So you contradicted yourself, and then revised your account to alleviate the contradiction."

I would not characterize it that way. My writing may have been sloppy, but I hope that you can follow my thinking after the last post. Sorry for the sloppiness.

(3) "'The later Court could not merely tread down its own path and create entirely new precedent.' Says who? What is the force of 'could not' here? By what authority and by what mechanism would they be prevented from doing so?"

The Court would be prevented from doing so by basic common law principles, including the principle of stare decisis (which I don't think I'm EVER going to get you to understand). That principle states that prior decisions become precedent, and that precedent squarely on point must be followed.

For example, suppose there were a case that said that executing someone with an iron maiden is not a cruel and usual punishment under the Eightm Amendment because X, Y, and Z. Also suppose that the present Court was faced with a case in which the issue was whether executing someone with a guillotine is constitutional.

Under these circumstances, due to the principle of stare decisis, the Court could not simply ignore the prior ruling involving the iron maiden. The Court would need to look to that case, look at reasons X, Y and Z given in that case and see if those same reasons are pertinent to the guillotine case. The framework the Court used in the iron maiden case would likely also be applied in the guillotine case. Under the principle of stare decisis, the Court could not simply create its own new framework and ignore the iron maiden case.

Ralph (response to post #2):

(A) I never said that the Court could interpret the Constitution to say that Coney Island belongs to Peru. This hypothetical seems to touch on foreign affairs, which is dictated by the president and not by the judicial system.
Let me know if I am missing something. I don't get what you are driving at.

(B) "So the Court can misrepresent precedent, but they cannot misrepresent the Constitution? What's the difference?"

The Constitution says many things. The Court used precedent is used to interpret what those various things actually mean. For example, the Fourth Amendment prohibits "unreasonable searches and seizures." Precedent provides tests that help the Court determine when a search or seizure is unreasonable under the Fourth Amendment.

The Court could never change what the Fourth Amendment says--i.e., the Court could not say that the Constitution only prohibits injurious searches and seizures. But in a certain opinion the Court could misrepresent some of the tests--prior precedent--used to determine what constitutes an unreasonable search and seizure. See the difference:
(1) Court could not change standard from "unreasonble searches and seizures" to "injurious searches and seizures" under the 4th Amendment;
(2) Court could change--or misrepresent--tests used to determine what IS an unreasonable search and seizure under the 4th Amendment.

(C) "The Supreme Court consists of nine justices who frequently disagree on the meaning of the Constitution. One of the numerous absurd consequences of this given your account is that the opinion of a Justice could be constitutional or unconstitutional, not on its own merits, but solely in virtue of what the other members of the Court believe. That is, if the Justice is in the majority, his/her opinion is correct, if the minority, incorrect."

You need to think through Point B a little bit. The judges don't disagree about the "meaning of the Constitution." Rather, the judges ALL agree on what the Constitution says--i.e., the judges all agree that the 4th Amendment prohibits unreasonable searches and seizures. The judges disagree about what precedent should be used to determine if a search is reasonable or unreasonable under the 4th Amendment. As a general rule, Scalia and Thomas prefer tests and prior precedent that result in searches and seizures being deemed reasonable under the 4th Amendment. As a general rule, the liberal wing of the court prefers tests and prior precedent that results in searches being deemed unreasonable under the 4th Amendment.

In short, the judges don't disagree on what the Constitution--here the 4th Amendment--says. The judges disagree on what precedents and tests should be used to interpret what the 4th Amendment says. It is clear to everyone that unreasonable searches and seizures are unconstitutional. It is just not clear what test should be applied to determine what is reasonable.

A judge in the minority is not incorrect with regards to his/her interpretation of the Constitution. In a search and seizure case, a judge in the minority would agree that the 4th Amendment prohibits unreasonable searches and seizures. The judge would simply have been in the minority on whether the particular search/seizure at issue was reasonable based on prior 4th Amendment precedents.

Short:

"You, on the other hand, have repeatedly (though not consistently) DENIED that the constitution limits the constitution's authority.'

I don't know what you mean. The Constitution limits the Constitution's authority? Say what?
Do you mean that the Constitution limits the Court's authority? And you accuse me of employing non sequiturs?

Further, I do not understand what you mean by your repeated use of the "limits the Court's authority" phrase. The Court has the final say on all Constitutional matters. The Court is infallible in this realm. There is no tribunal that reviews the Court's decisions on constitutional matters, and that can reverse or overturn the Court's decision. This is not my view, by the way--this is how it is. The Court has the power of judicial review, and it may review laws and codes and strike them void if it deems them to be unconstitutional. That is how it is.

"Given your view that the supreme court is the only interpretor and an infallible interpretor of the constitution, this only makes sense."

I do think that the Court can make mistakes--obviously. When I say that the Court is considered infallible with regards to Constitutional matters, I mean that the Court's interpretation is the final say. There is no other body that reviews the Court's interpretation or that can reverse the Court's decisions. What the Court says goes. The Court's opinions and decisions are considered infallible. Again, I am not advocating this position--I'm explaining that this is how things actually operate in our democracy.

"According to the logic of your view, the only 'limits' on the court are the ones the court wants to give itself."

Well, the Court does not have jurisdiction to do lots of things--the Court cannot, for example, declare war. This could be considered a "limit," couldn't it? I'm pointing out that the Court does not have anyone that reviews its constitutional decisions and rules them either correct or incorrect. There is no external group or body that "limits" the Court's interpretation of the Constitution. The Court's rulings on constitutional matters is authoritative and final.

"Thus, nothing external to the court limits the court."

Not when it comes to interpreting the Constitution. The Court is the ultimate and final interpretor of the Constitution.

"The constitution doesn't limit the SC; the 'constitution' does."

It seems that you are speaking incorently again. I don't know what you mean. Put the vodka down, and try again.

"In return, I'm enjoying schooling you in intellectual honesty."

Quite a sense of humor you have there. While we are on the subject of intellectual honesty, be honest with yourself and with me. You didn't score over 1000 on the SAT, did you?

Reader, I'm going to try to reason with you again. Though I suspect sophist-school has innoculated you against honest reasoning. You have granted the following three propositions:

1. The Court is infallible in its realm.
2. The Court's realm is defined by what the constitution says.
3. The Court's infallible in its reading of what the constitution says.

Thus, you are bound logically to assent to this fourth:
4. The Court is infallible is defining its own realm of infallibility.

You are under the illusion that constitutional limits on the SC's power are still possible given (4). That is just increadiably shortsighted logically.

For example, imagine the Court tomorrow were all given insanity-inducing drugs in their coffee, and then wrote the following decision 9-0: "Based on the 2nd amendment, we have the power to move the White House to Aruba; now do it by Friday noon or we'll declare war on Switzerland (which power is given to us by the 17th amendment)." You would have to say that they are acting within their constitutionally given powers. Now you may think this scenario is unlikely, but this is completely possible. And according to proposition (4), they must be right. So it seems we must reject (4)--right?

Now, Logic 095: in order to reject the conclusion, you must either reject one of the premises, or reject that the conclusion follows from the premises.

Short:

Honestly, you didn't score over 1000 on the SAT, did you?

Here's you:
"1. The Court is infallible in its realm.
2. The Court's realm is defined by what the constitution says.
3. The Court's infallible in its reading of what the constitution says.
Thus, you are bound logically to assent to this fourth:
4. The Court is infallible is defining its own realm of infallibility."

I agree with propositions #1 and #3. I think proposition #4 is wrong, and proposition #2 is only partially correct. Let's start with proposition #2: the Court's authority derives from Article III of the U.S. Constitution, as we already have established. But the Court's jurisdiction is set out by statute in U.S. Code Title 28. That statute delineates what types of cases the Court can and cannot hear. The reach of the Court to hear cases is not infinite--as you seem to assume. Title 28 restrains the Court's reach.

Proposition #4 is wrong because the Court cannot define its own realm of infallibility. It is limited to hearing constitutional cases. Within that realm, it is infallible, but its reach is limited to that realm.

You again: "For example, imagine the Court tomorrow were all given insanity-inducing drugs in their coffee, and then wrote the following decision 9-0: "Based on the 2nd amendment, we have the power to move the White House to Aruba; now do it by Friday noon or we'll declare war on Switzerland (which power is given to us by the 17th amendment)." You would have to say that they are acting within their constitutionally given powers. "

Where did you get the insanity-inducing drugs idea? Batman Begins? But in all seriousness I don't think you understand how the Court operates. The Court hears cases; it does not issue edicts. In order for the Court to hear a case, it must have jurisdiction over that case. The Court would NEVER have jurisdiction to hear a case in which the issues are: (a) whether the White House should move; and (b) whether the United States should declare war on Switzerland.

The Court therefore would NOT be acting within its constitutional powers by hearing a case involving those issues. Moreover, the Court would be acting in contravention of Title 28 if it heard a case involving those issues.

Look at it this way: the Court is considered infallible when it reaches a decision on a case properly before it. However, not all issues or cases can properly come before the Court.

Get it, yet?

"The Court's authority derives from Article III of the U.S. Constitution."

"He [Marshall] gave the Court the power of judicial review in the Marbury v. Madison case."

Which is it Reader? You can't have both.

Reader: you still don't know how arguments work, and you seem to not understand the logical force of a thought-experiment.

If you don't like (2), I'll replace it:

1. The Court is infallible in its realm of athority.
2. "The Court's authority derives from Article III of the U.S. Constitution."
3. The Court's infallible in its reading of what Article III of the constitution says.
Thus, you are bound logically to assent to this fourth:
4. The Court is infallible is defining its own realm of authority/infallibility.

Now, I'll repeat, Logic 095: in order to reject the conclusion, you must either reject one of the premises, or reject that the conclusion follows from the premises.

Also, you can't reject the thought experiment by saying that you don't think their constitutional power extends that far--of course I agree. But by supposition THE SUPREME COURT SAYS it does, and you have said that what they say about the constitution is true (Premise 3). I have a right to say they're wrong. You don't.

Astonishing, really. It's like trying to reason with a stone. I, for one, give up. Reader is (unwittingly?) attempting to deconstruct the meaning of the Constitution and, at the same time, claim that it's meaning is objective in some sense. The sad thing is he really doesn't see the problem.

I leave the good fight in Short's able hands, though I suspect no amount of logical instruction can cure Reader's ineptitude.

Short (reply to post one):

"'The Court's authority derives from Article III of the U.S. Constitution.'
'He [Marshall] gave the Court the power of judicial review in the Marbury v. Madison case.'
Which is it Reader? You can't have both."

The Supreme Court was created by Article III of the U.S. Sonstitution. That is the original source of the Court's power to adjudicate constitutional cases. The Court's power to review and ultimately strike down codes and laws is called the power of judicial review. Justice Marshall arrogated that power to the Court in the Marbury v. Madison case.

Really, none of this is rocket science. I have no idea why you numbskulls struggle with this stuff so much (besides the fact that you two are, well, numbskulls).

Short:

I'm willing to bet my life's savings that you never got higher than a B+ in a philosophy class. Your syllogism is extremely poor.

Let's see if you can further revise it so it is at least defensible. Keep in mind two things: (1) the Court's jurisdiction to hear cases is set out in Title 28; (2) courts can only issue rulings on cases before them.

Revise your syllogism for me, and then we will continue. Or else just concede defeat now.

Ralph:

I'm glad you are leaving the debate. It didn't seem like you were contributing much to it anyway. You don't understand stare decisis, the common law system or the power of judicial review. Further, your posts demonstrate incredible ignorance of the American legal system and modern constitutional law.

Go back to your Ann Coulter books and your custodial job. Goodbye.

Q: When do you know that Reader is losing an argument?

A: When his argument becomes a series of stock insults.

Reader: I'm confused, are you rejecting one of the premises? Are you arguing that the conclusion doesn't follow from the premises? Those are your only two options if you want to argue that the "syllogism is extremely poor." Otherwise, you just aren't playing the game of logic correctly.

Another Reader:

What argument, precisely, am I losing? I'm trying to explain to these two fools basics about our legal system! I'm explaining in this thread--not arguing.

Short:

Here's my beef with your proposition. It does not explicate what the Court's realm is. Let's agree that the Court's realm is "hearing legal cases involving constitutional issues properly before the Court, and issuing decisions based on the facts in those cases."

Add that proposition to the syllogism and you get the following unremarkable conclusion: the Court is infallible when it comes to issuing decisions based on facts it has heard in legal cases involving constitutional issues that are properly before it.

I told you that this was true on post #6 or so of this--now incredibly lengthy--thread.

So what are you arguing with me? What don't you understand? Please spell out your position here more clearly and let me know where you disagree with me--if you disagree with me at all.

I can't resist: "...issues that are properly before it." Who determines what issues are "properly" related to a case that is before the court?

Reader, you're just being stubborn! No matter what "limits" you say you are willing to put on the court's realm, in order to avoid the conclusion you must DENY that these limits are defined by the court itself. You haven't done this yet.

So let's see what happens when we say that "the Court's realm is hearing legal cases involving constitutional issues properly before the Court, and issuing decisions based on the facts in those cases."

So, in your view, who in this country has the authority and final say about whether a case "involves constitutional issues properly before the Court"? Who decides whether the SC's decision is "based on the facts in the cases"? You have two possible answers: the SC or something else.

If you answer, "the Supreme court", then the conclusion ('4. The Court is infallible is defining its own realm of authority/infallibility') follows. Get it?

If you don't answer, "the Supreme Court", then you must revise what you have said earlier. There will be a law *over* them about which they can be *wrong*. The court won't be absolutely "Supreme" and "infallible" in deciding/reading the law of the land.

Ralph:

The following documents/statutes/individuals play a role in determining which issues properly reach the Supreme Court:

(1) Article III and Title 28--which, we agree, the Court interprets, but which the Court cannot interpret unless the Court has a case before it which calls for it to interpret those provisions;
(2) lower court judges--who filter out cases that do not present legal issues "ripe"--that's the actual legal word--for adjudication;
(3) lawyers--who may be fined for filing a case in court that does not present legal issues ripe for adjudication. Further, lawyers know that it is a waste of time and money to bring cases before a court when the court does not have the power to rule on the case.
(4) Supreme Court clerks--who choose which cases the Supreme Court will hear, and who may easily be fired and replaced if they select cases which the Supreme Court would not have authority to adjudicate.
(5) The Federal Rules of Civil Procedue and State Rules of Procedure: all of which delineate what issues can properly come before courts.

As a result of these checks, the Supreme Court only hears cases that present Constitutional issues. The Supreme Court does not hear cases featuring issues such as whether the White House should be moved to Aruba.

Can you think of a single case that the Court heard that you did not think was properly before the Court? And, if not, why do you think that the system does not work?

Short:

See my post to Ralph.

Raeder: Why don't you address the syllogism?

1. The Court is infallible in its realm.
2. "The Court's realm is hearing legal cases involving constitutional issues properly before the Court, and issuing decisions based on the facts in those cases."
3. The Court is the infallible and final decider of the criteria listed in (2).
Thus, you are bound logically to assent to this fourth:
4. The Court is infallible is defining its own realm of authority/infallibility.

Are you denying premise 3? You listed five "documents/statutes/individuals [that] play a role in determining which issues properly reach the Supreme Court." But the SC has authority over all of these, right? (##2-4 are underlings that can be overruled, and #1 and #5 are texts about which the SC has final, infallible say, according to you.) So you still have premise 3, and you still have the conclusion.

You have accepted all the premises, but want to reject the conclusion. Given that the syllogism is valid, that is as irrational as saying 2+2=5.

Short:

Yes, I disagree with proposition 3. I would agree with proposition 3 if the Court could initiate lawsuits itself. However, the Court can only hear other people's cases and can only issue rulings based on those cases.

This provides a very serious limitation on the types of cases the Court hears. In order for the Supreme Court to hear a case, the following things must happen:
(1) someone must initiate a lawsuit;
(2) a lawyer must agree to take the case--note that lawyers are familiar with issues of jurisdiction and standing and ripeness and would not bring a case on behalf of a client if they do not in good faith believe that the court before which they bring the case has the legal authority to decide the case. Otherwise, they waste time and/or money and/or risk being disbarred, suspended or fined;
(3) the case must survive summary judgment/ripeness/no standing motions to dismiss--note that cases are frequently thrown out on such procedural grounds, meaning that a trial and ruling on the issues in the case never takes place;
(4) once the case survives initial motions to dismiss, the case must go through and a judge must issue a ruling;
(5) the ruling of the case must be challenged by a higher court--the higher court will not review the case if it believes that the litigant never had standing in the first place;
(6) the higher court must issue a ruling;
(7) the litigant who lost the case must request that the Supreme Court--or yet another lower court beneath the Supreme Court--hear the case;
(8) assuming that it is the Supreme Court that receives the petition, the Supreme Court's clerks must agree to hear the case--they will not hear the case if they do not believe that the litigant has standing or jurisdiction to hear the case;
(9) it is also worth nothing that there are hundreds of procedural specialists--i.e., professors who concentrate on nothing but procedure. Some of these professors are incredibly influential and would write briefs, articles, and other documents condemning any high court (i.e., federal court or State Supreme Court) that heard a case it was not inarguably permitted to hear.

Less than 0.00001% of cases initiated make it through all these hurdles and come before the Supreme Court.

In order for an improper case to appear before the Supreme Court, literally hundreds of (very intelligent) people must have screwed up.

I suppose it is theoretically possible for hundreds of people to screw up and for an improper case to come before the Supreme Court--for example, a case where the main issue is whether the White House should be moved to Aruba. But, of course, it is also theoretically possible for Congress to declare war on Aruba tomorrow, or for President Bush to author a bill providing for a constitutional amendment to legalize polygamy.

I still don't see where you and Ralph are going with all your questioning. I am right back where I was at my sixth post or so--the Court is infallible when it comes to interpreting constitutional issues properly before it--whereas you two have been all over the place.

Reader,

I can't stay away. Your general cognitive dissonance is too fascinating. I feel obligated to try to correct it.

Take whatever case you like, say the juvenile capital punishment case that was recently decided. Who determines what issues are "properly" related to the case? Suppose the Court determined that the status of Congress as a branch of government was "properly" related to the case. Would they be wrong? By what measure?

Reader: Now your position is that "the Court is infallible when it comes to interpreting constitutional issues PROPERLY before it." And you've added a real limitation to the court's authority: the SC is not the final arbitor of what is "properly" before it and within its authority.

Is that right? If yes, then a mere "yes" will do.

Reader: Or perhaps you are not really rejecting premise #3 at all. Are you saying that only limit on SC authority is that they can't initiate lawsuits? Otherwise they would be unlimited and infallible?

But of course the SC justices can initiate law suits--that is, the individual justices can. They are citizens.

So let's say (unlikely, but possible) Scalia sued to abolish Congress, lost, and then sent his appeal straight to the SC. The SC heard it and found on his side. Would this decision be authoritative according to your view? Would it be the law of the land? The SC would be acting constitutionally? Yes or no?

In answer to your question, I expect Reader to blather on at great length about conflict of interest, recusal, and the like. All of which is beside the point.

What's to prevent the Court from "hijacking" any case they want to serve any purpose they want? The plaintiff and defendant may think their case is about the juvenile death penalty, but who are they to make such a determination? the Court could decide that it involves the status of Congress as a branch of government.

Short:

"Now your position is that "the Court is infallible when it comes to interpreting constitutional issues PROPERLY before it." And you've added a real limitation to the court's authority: the SC is not the final arbitor of what is "properly" before it and within its authority.
Is that right? If yes, then a mere "yes" will do."

No. That's not right. The Court actually is the final arbiter of which cases are properly before it. However, a case must get through a number of hurdles before the Court actually would get the opportunity to proclaim itself to be the arbiter over the case. See my response to your hypothetical below for a further explanation/response.

"So let's say (unlikely, but possible) Scalia sued to abolish Congress, lost, and then sent his appeal straight to the SC. The SC heard it and found on his side. Would this decision be authoritative according to your view? Would it be the law of the land? The SC would be acting constitutionally? Yes or no?"

Well, first of all, let's agree that this case would never reach the Supreme Court. Why? Citizens do not have standing to challenge the legitimacy of Congress--just as citizens do not have the power to declare war, or to question foreign policy decisions. This hypothetical case would be a laughingstock, and almost certainly would result in Scalia losing his legal license and certainly his seat on the Supreme Court.

Also note that no lawyer would argue this case for Scalia, and the case would be thrown out before a decision was reached at federal district court on procedural/jurisdictional grounds. The case would never make it to a federal circuit court of appeals, much less to the United States Supreme Court.

I hope you agree with me so far. Never in a billion years would the case reach the Supreme Court.

What if hundreds of people went insane and the Court heard the case and the Court somehow ruled that Congress should be abolished? This is an interesting--and far-fetched--hypothetical. As a purely legal matter, the Court's decision would be binding. But as for what would actually happen in real life, that calls for speculation on my part. I assume that this would be considered tantamount to an insurrection. I would bet that Congress would attempt to impeach the justices when the case appeared on the Supreme Court docket, and before it went to trial. Someone might attempt to do away with the justices--I don't know. It's a pretty crazy hypothetical and it could never happen in real life without a lot of people going insane and/or taking part in a massive conspiracy.

I'll grant you that there is some insanely small possibility of that happening. But it is a danger on the order of the danger that President Bush might use his power as commander in chief to randomly launch a nuclear missile attack on all of Asia. Certainly, Bush has the power to do that, but as citizens we have to have at least some small degree of trust that he and his advisors will not do anything detrimental to the country. So it is with the Supreme Court.

Ralph:

"What's to prevent the Court from "hijacking" any case they want to serve any purpose they want? The plaintiff and defendant may think their case is about the juvenile death penalty, but who are they to make such a determination? the Court could decide that it involves the status of Congress as a branch of government."

You guys are really into some wacky conspiracy theories now. What if the Court did X, or what if the Court went completely crazy and tried to do Y? I mean, I suppose that it is theoretically possible that the Court could ignore the issues actually presented in a case and just write something completely irrelevant to any of the facts in the case and issue a ruling on a different topic altogether.

It is also possible that Bush could launch a missile strike against all of Asia, that Congress could pass legislation decreeing that all blue eyed children will be executed--thankfully, the Supreme Court would rule that legislation unconstitional--and it is also possible that the sun will not come out tomorrow.

We're talking about the most remote and far-fetched of contingencies now. Is that the best you guys can do?

"What if ... the Court somehow ruled that Congress should be abolished? ... As a purely legal matter, the Court's decision would be binding."-Reader

OK Reader, I'm out. In a reductio ad absurdum, some people are more willing to accept the absurd than to admit they made a mistake at the beginning of the argument. An argument is supposed to be a search for truth, not an exercise in pride and and insults. Sincerely, I hope you fare better in life than you have in this argument.

Reader,

The purpose of such "remote and far-fetched" examples is not to suggest that they will come to pass, but to provide extreme cases that clearly expose the incoherence of your account. The point of all this is to show you that the Court's decisions can violate the Constitution (a possibility precluded by your position).

Roe v. Wade, based on a right to privacy not contained in the Constitution, is just such a decision. And the difference between it and a hypothetical decision abolishing Congress is merely one of degree, not of kind.

What you fail to recognize is that, unless there is some external restriction on the Supreme Court's authority to interpret the Constitution (an authority no one disputes), the Court possesses absolute political power. Fortunately for us, there are external restrictions. Since the Socratic approach has failed (it takes two to tango Mr. Euthyphro), let me dogmatically explain how the system is designed to function.

The Constitution has an objective meaning that is evident from the text. The Court is an authoritative interpreter of the Constitution. The Court can, however, err in its interpretation. An error by the Court can be checked by the other authoritative interpreters of the Constitution, viz., Congress, the President, and ultimately the people themselves (state legislatures, prior to the 17th Amendment). Congress can reject the Court's interpretation through impeachment and removal; the President can refuse to enforce the Court's decision; and the people, as electors, can contribute to those mechanisms by electing representatives who will employ them.

Short:

That's not a reductio ad absurdum of my position. That's a reductio ad absurdum on how things actually are.

Of course, there is a some remote danger that hundreds of people could go crazy, the Court could hear a case it shouldn't be hearing in the first place, and the Court should make some ruling which is contrary to the letter and spirit of the Constitution.

It never would happen in real life, but it is theoretically possible. That's not a reductio ad absurdum on anything. No more so than the fact that George W. Bush could launch an unprovoked nuclear missile attack on Asia is a reductio ad absurdum on the powers of the presidency.

Really, now, what argument do you think you have won? I have agreed with you that if hundreds of people go insane, something dangerous could occur. So what? You think you have won some argument, but you haven't proven anything--except for that you have little understanding of separation of powers and how our judiciary actually works. If demonstrating ignorance is winning, then you are the clear winner here.

Ralph:

"The purpose of such 'remote and far-fetched' examples is not to suggest that they will come to pass, but to provi