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MigL

Constitutional laws (split from Ruth Bader Ginsburg)

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I really have a problem with the American Supreme Court, and the Canadian equivalent.

It seems that the people we entrust with making laws, your Congress, and our Parliament, don't give a damn about passing just or complete laws, then, rely on a partisan and unelected Supreme court to 'interpret' those laws in their favor.
It doesn't seem to matter which party is doing it ( they both do it ), D Trump wants a Republican leaning Supreme Court so he can get rid of the ACA and get a favorable election result from the E College, neither of which he can legally do as the laws are now interpreted.
The Democrats on the other hand, want to have a Democrat leaning Supreme Court so as to protect Roe vs. Wade and legal abortion.

If the American population supports legal abortion, and this is expressed through their votes and representatives in Government, why is subterfuge and stacking of courts with unelected ( and unaccountable ) judges required ?
Why are not proper laws passed which resist varying interpretations, and that the people have a say in ?

( this could be re-pjrased as "Why are our elected representatives not doing thei rjobs properly ?" )

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55 minutes ago, MigL said:

Why are not proper laws passed which resist varying interpretations, and that the people have a say in ?

Easier to avoid passing hard legislation or taking tough votes which might cause you to lose the next election, so they flood the courts with justices likely to rule in their favor and who don’t face equal retribution from the electorate 

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7 hours ago, MigL said:

Why are not proper laws passed which resist varying interpretations, and that the people have a say in ?

Do you know of any laws that are completely resistant to varying interpretations? Seriously asking because I'd say there are none, but you're welcome to try and change my mind.

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8 hours ago, MigL said:

I really have a problem with the American Supreme Court, and the Canadian equivalent.

It seems that the people we entrust with making laws, your Congress, and our Parliament, don't give a damn about passing just or complete laws, then, rely on a partisan and unelected Supreme court to 'interpret' those laws in their favor.
It doesn't seem to matter which party is doing it ( they both do it ), D Trump wants a Republican leaning Supreme Court so he can get rid of the ACA and get a favorable election result from the E College, neither of which he can legally do as the laws are now interpreted.
The Democrats on the other hand, want to have a Democrat leaning Supreme Court so as to protect Roe vs. Wade and legal abortion.

If the American population supports legal abortion, and this is expressed through their votes and representatives in Government, why is subterfuge and stacking of courts with unelected ( and unaccountable ) judges required ?
Why are not proper laws passed which resist varying interpretations, and that the people have a say in ?

( this could be re-pjrased as "Why are our elected representatives not doing thei rjobs properly ?" )

It wasn’t congress passing laws that was the problem for abortion. It was individual states passing laws that were ruled to infringe on rights. One of issues is that states can’t take away federally-guaranteed rights.

You might argue that congress not passing a law is the problem, but you don’t generally pass laws to say something is legal. You pass them to disallow certain actions.

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1 hour ago, MSC said:

Do you know of any laws that are completely resistant to varying interpretations?

Speed limits 

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10 minutes ago, iNow said:

Speed limits 

Zugzwang haha you've checkmated me in one move. Bravo.

That being said... some thoughts do occur.

Does that imply that there can be numbers and math involved in creating all types of law to create as MigL would say; "a proper law"?

What if I'm going 2 miles over or under in a 30mph zone late at night, and depending on how each cop feels about the context of that, may or may not lead to my getting a ticket? 

Good response though, speed limits are definitely one of the most variance of interpretation resistant types of code/ordinance/law there is. 

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9 hours ago, MigL said:

If the American population supports legal abortion, and this is expressed through their votes and representatives in Government, why is subterfuge and stacking of courts with unelected ( and unaccountable ) judges required ?
Why are not proper laws passed which resist varying interpretations, and that the people have a say in ?

In the US abortion laws are generally State laws. In states the voters and politicians either do or do not support abortion and pass laws that represent that preference. Stacking the Supreme Court is a way to impose your views on the entire population and overrule the will of the people at the State level, by finding that some specific state laws violate the Constitution.

Until Roe v. Wade the state laws were proper and not subject to interpretation.

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9 hours ago, MigL said:

It seems that the people we entrust with making laws, your Congress, and our Parliament, don't give a damn about passing just or complete laws, then, rely on a partisan and unelected Supreme court to 'interpret' those laws in their favor.

Interpretation of law is the whole point of litigation. If laws were complete in a sense that they cannot be challenged or interpreted in different ways, there would basically be no need for a judicial system in the first place. 

The other point of course is that any application of interpretation of existing laws must not violate the supreme laws of a given county (such as the constitution), which are generally much harder to change than other laws. 

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I only used abortion , and Roe vs. Wade, as one example where Democrats want a left-leaning Supreme Court to protect the abortion status quo, but there are many others.
D Trump, for example, wants a Republican stacked ( right-leaning ) Supreme Court to rule on the ( un )Constitutionality of the Affordable Care Act.
An Act which he's had 4 years to replace with 'something better' ( his words ), but he still has no plan to replace it with; he just wants to scrap the existing Act which a lot of Americans are happy with, and most want expanded coverage.
There are many other issues decided by Supreme Court rulings ( elections, fracking, pipelines, etc. ) which get decided solely by the political leanings of the majority of the Supreme Court Judges.

Should not the people have a say through elected representation, not unelected, unaccountable partisan judges ?

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9 minutes ago, MigL said:

Should not the people have a say through elected representation, not unelected, unaccountable partisan judges ?

Hmmm... have you seen the ridiculous things people have been saying lately, though?

“The best argument against democracy is a 5 minute conversation with the average voter.”

1 hour ago, MSC said:

What if I'm going 2 miles over or under in a 30mph zone late at night, and depending on how each cop feels about the context of that, may or may not lead to my getting a ticket? 

That’s an issue of enforcement, not interpretation 

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Don't know the author of that quote, INow ( although I should ), but it was W Churchill who said …
"it has been said that democracy is the worst form of Government except for all those other forms"

I imagine 'other forms' includes Government by unelected, unaccountable judges.
( Wouldn't an unelected, unaccountable President be a dictator ? So why do we put up with judges doing it ? )
 

And if you say W Churchill was the author of your quote also, I'm going to assume he was a very confused individual.

Edited by MigL

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21 minutes ago, iNow said:

Hmmm... have you seen the ridiculous things people have been saying lately, though?

“The best argument against democracy is a 5 minute conversation with the average voter.”

That’s an issue of enforcement, not interpretation 

So it's an issue of law enforcement interpretation then?

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9 minutes ago, MigL said:

Don't know the author of that quote, INow ( although I should ), but it was W Churchill who said …
"it has been said that democracy is the worst form of Government except for all those other forms"

I imagine 'other forms' includes Government by unelected, unaccountable judges.
( Wouldn't an unelected, unaccountable President be a dictator ? So why do we put up with judges doing it ? )
 

And if you say W Churchill was the author of your quote also, I'm going to assume he was a very confused individual.

Checks and balances.

We in Canada and US live in constitutional democracies not "pure" democracies, which could tyrannize minorities. Any laws passed must not break rights guaranteed in the respective constitutions. This requires interpretation at times. Any changes in the constitution/s are much harder to bring about and the process also requires judges separate from the lawmakers passing new laws.

Judges on the other hand don't make the laws...or at least are not supposed to...

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23 minutes ago, MigL said:

And if you say W Churchill was the author of your quote also, I'm going to assume he was a very confused individual.

I’ve not validated for myself, but always thought it was Churchill who said it 

11 minutes ago, MSC said:

So it's an issue of law enforcement interpretation then?

Perhaps, but irrelevant. We were talking about law interpretations, not law enforcement decisions. 

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22 minutes ago, MigL said:

Wouldn't an unelected, unaccountable President be a dictator ? So why do we put up with judges doing it ?

I agree. Term limits, peoples nominees.

As things stand, it's not really the judges fault. Offer a man absolute power and it may corrupt him absolutely. The issue isn't the judges, it's what the constitution allows judges to do. 

That's why amendments, if it's broke, fix it. 

Another good example relates to free speech and social media. We can't reasonably expect the writers of the constitution to account for something like that, however they did leave language in there drawing attention to the idea of new technologies and advancements requiring constitutional laws to be amended. I forget where that is but I'll dig it up within a few days probably. 

 

14 minutes ago, iNow said:

I’ve not validated for myself, but always thought it was Churchill who said it 

Perhaps, but irrelevant. We were talking about law interpretations, not law enforcement decisions. 

True, this is about constitutional law too. The only variance in speed limit interpretation really is "did that sign back there say 40 or 30?".

I'd still be pretty pissed though if a cop just followed me and fined me everytime I went 0.01mph over or under the speed limit of a given road. 

16 minutes ago, J.C.MacSwell said:

Judges on the other hand don't make the laws...or at least are not supposed to...

I suppose that's the danger of logic as a fallible human tool. Depending on the law, the original framing, the history of how the law has been challenged in court, dictionary changes, the present times and personal/group biases. 

All of these are fuel for a greater range of interpretation in the legal modality of a written law. Will a judge one day rule in favour of people being able to stockpile nuclear arms because "Right to bear arms" by interpreting the lack of definition of limits on what sort of arms, to mean all arms possibly imaginable?

 

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More to the point of OP's topic title "Constitutional laws" and OP's questions.

In order for any form of human government to be "constitutional", it must be founded upon a "constitution" that establishes the parameters that such a form of government must be founded within by constitutional boundaries established within its constitution.

If such a constitutional form of government be a Constitutional Democracy or a Constitutional Republic, is an experimental a priori (relating to or denoting reasoning or knowledge which proceeds from theoretical deduction rather than from observation or experience) political science expression, based upon pre-existant knowledge of philosophical and scientific constitutional principles regarding forms of governments.

Ideally, in the United States constitution, the political scientists "founders" constitutionally intended Supreme Court justices to be unbiased and "apolitcal" (not interested or involved in politics), hence the reasoning for the lifetime tenure for Supreme Court justices that are not directly elected public officials and selected and installed only by the most representative areas in such a government.

In the United States constitution, it is not numerated as to how many Supreme Court judges are required to make a constitutional ruling, the court has evolved to the nine members only by statute.

Because the number is bound by statute, it would be federally illegal to "stack" the court to higher numbers solely for generating judicial bias for political gain regarding any existent de jure (by Right; according to law) legal precedent.

Legal interpretation of legislative acts or laws, is one of the corner stones of any legal or justice system within any form of government. Fundamentally, any law derived by any state or federal level of government really falls within two categories, "constitutional" and "unconstitutional".

In the United States, the constitutional validity of a legislative act derived by any state or federal form of government may be challenged by a process called "judicial review" or through a "writ of certiorari".

The United States constitution is not "written in stone", it is in fact alterable and amendable, possibly although improbably even abolishable by its own intrinsic constitutional design. The constitution is intrinsically designed to be difficult to alter for any governing body without a representative majority.

 

 

Edited by Orion1
spelling error

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2 hours ago, Orion1 said:

Ideally, in the United States constitution, the political scientists "founders" constitutionally intended Supreme Court justices to be unbiased and "apolitcal" (not interested or involved in politics), hence the reasoning for the lifetime tenure for Supreme Court justices that are not directly elected public officials and selected and installed only by the most representative areas in such a government.

How effective has this been?

2 hours ago, Orion1 said:

Because the number is bound by statute, it would be federally illegal to "stack" the court to higher numbers solely for generating judicial bias for political gain regarding any existent de jure (by Right; according to law) legal precedent.

I agree. Does this mean the only legal mandate is to balance the courts? Can the number of justices be legally reduced to create an even split? This would give justices more incentive to work together and compromise to find more collaborative interpretation more as a judicial entity as opposed to individual or partisan identity?

2 hours ago, Orion1 said:

In the United States, the constitutional validity of a legislative act derived by any state or federal form of government may be challenged by a process called "judicial review" or through a "writ of certiorari".

Does this apply to legislative acts that impact the structure of the judiciary? Could a majority of justices block the addition of a new justice office? Deferring to you on this because you clearly know more than I do and I quite mean that. 

2 hours ago, Orion1 said:

The United States constitution is not "written in stone", it is in fact alterable and amendable, possibly although improbably even abolishable by its own intrinsic constitutional design. The constitution is intrinsically designed to be difficult to alter for any governing body without a representative majority.

 

What sort of senate majority would a government need to alter the judiciary branch? US specifically.

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10 hours ago, Orion1 said:

Because the number is bound by statute, it would be federally illegal to "stack" the court to higher numbers solely for generating judicial bias for political gain regarding any existent de jure (by Right; according to law) legal precedent.

Nonsense, and nonsense clouded by a needlessly verbose and loquacious post. 

The number of Justices on the SCOTUS is both arbitrary and unconstrained. There could a thousand Justices if that’s what the congress decided. Even if statutes actually bounded the allowed number (which they don’t), it is the Congress who authors those same statutes anyway. Summarized, it can be changed and your point is moot. 

To be frank, your post also comes across as historically ignorant. In 1789, the SCOTUS had 6 Justices. Then in 1807 there were 7 Justices. Then in 1837 the number bumped up to 9, and in 1863 there were 10 Justices. In 2016, the GOP unilaterally decided to let their be only 8 until further notice...

You’re either misunderstanding the facts or you are purposefully lying about them, neither of which bolsters your position. Quite the opposite, really.

10 hours ago, Orion1 said:

The constitution is intrinsically designed to be difficult to alter for any governing body without a representative majority.

And yet here we are watching them ram through a 6th GOP Justice who was nominated by an impeached president who lost the popular vote by 3 MILLION votes, one who will be confirmed by GOP senators representing 11 MILLION fewer Americans than their Democratic colleagues — during an already active election in 3 weeks where millions of votes have already been cast and polls show the GOP way down, and when they wouldn’t even interview (let alone vote on) Obama’s nominee within hundreds of days of the election. 

Let’s not pretend this is about being representative. 

Edited by iNow

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11 hours ago, J.C.MacSwell said:

Checks and balances.

We in Canada and US live in constitutional democracies not "pure" democracies, which could tyrannize minorities. Any laws passed must not break rights guaranteed in the respective constitutions.

Checks and balances are supposed to  ensure  the constitutuion can't be manipulated to  tyrannise  anyone ; a "pure" democracy  (ie. every-one gets to vote and every vote counts.)  seems the best chance.

37 minutes ago, iNow said:

The number of Justices on the SCOTUS is both arbitrary and unconstrained. There could a thousand Justices if that’s what the congress decided. Even if statutes actually bounded the allowed number (which they don’t), it is the Congress who authors those same statutes anyway.

Let's hope the number's at least balance...

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9 minutes ago, dimreepr said:

Checks and balances are supposed to  ensure  the constitutuion can't be manipulated to  tyrannise  anyone ; a "pure" democracy  (ie. every-one gets to vote and every vote counts.)  seems the best chance.

 

The context I was going for with putting "pure" in quotes was a democracy unimpeded by a constitution or equivalent, which could lead to a tyranny of the majority.

https://en.wikipedia.org/wiki/Tyranny_of_the_majority

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4 minutes ago, J.C.MacSwell said:

The context I was going for with putting "pure" in quotes was a democracy unimpeded by a constitution or equivalent, which could lead to a tyranny of the majority.

https://en.wikipedia.org/wiki/Tyranny_of_the_majority

I did wonder, that's why I answered as if you inclunded a comma... 🙂

 

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2 minutes ago, dimreepr said:

I did wonder, that's why I answered as if you inclunded a comma... 🙂

 

I had to think about that one. I guess the comma shouldn't be there.

 

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1 minute ago, J.C.MacSwell said:

I had to think about that one. I guess the comma shouldn't be there.

 

Or perhaps, a second one should be... 😉

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12 hours ago, MigL said:

I only used abortion , and Roe vs. Wade, as one example where Democrats want a left-leaning Supreme Court to protect the abortion status quo, but there are many others.
D Trump, for example, wants a Republican stacked ( right-leaning ) Supreme Court to rule on the ( un )Constitutionality of the Affordable Care Act.
An Act which he's had 4 years to replace with 'something better' ( his words ), but he still has no plan to replace it with; he just wants to scrap the existing Act which a lot of Americans are happy with, and most want expanded coverage.
There are many other issues decided by Supreme Court rulings ( elections, fracking, pipelines, etc. ) which get decided solely by the political leanings of the majority of the Supreme Court Judges.

Should not the people have a say through elected representation, not unelected, unaccountable partisan judges ?

The court that decided in favor of Roe was right-leaning. The GOP plan is to pack the court with judges willing to ignore precedent and apply personal, religious views. IOW, not decide on the merits.

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