SCOTUS and the US constitution (split from The next Supreme Court judge)

[DrmDoc]

Just to add my tardy 2 cents to this discussion, the SCOTUS doesn't make laws nor necessarily interpret laws.  The SCOTUS decides whether a new law or a lower court ruling conforms to our Constitution, which is the supreme law of the land.  Laws are proposed by the Legislative branch of our government, which is the House of Representatives and Senate.  These proposed laws or bills only become law when they are signed by the POTUS.  New laws that change our Constitution must go through this process in addition to having a majority of our individual state governments ratify that change.  The Supreme Court has no intercession in this process unless they are presented with a challenge to a law or ruling.  The members of our Supreme Court decides whether a challenged law or court ruling conforms to their individual interpretation of our Constitution, which is not an interpretation of the new law or ruling but whether these legal instruments agree with the intent of our Constitution as paved by its original signers. In deciding whether some legal challenge is valid, the process can become partisan or political through the individual interpretations of our Constitution as held by the Justices on our Supreme Court.

[MigL]

You guys are full of crap.

If SCJ don't interpret/make law, then why all the hand-wringing over whether they are Conservative or Liberal. or, pro-life or pro-choice ?
It shouldn't matter if all they do is confirm the constitutionality of laws passed by the Legislative branch of Government.

[TheVat]

The conflict is between two camps with different views of the Constitution, generally called Originalists and Living Document (aka loose constructionism).  Originalists, who believe in strict adherence to a map laid out ca. 1790, tend to be conservative - Antonin Scalia was a prominent Originalist.  Living Document justices, who believe that society has changed and evolved since 1790, and that our laws must be adaptive to those changes, tend towards more Liberal.

The reality, for a long time, has been that loose constructionists guided a lot of seminal decisions and been influenced by changes in society such that some amendments have been seen as archaic and in need of clarification in a modern world.  Their decisions, the so-called landmark cases, have done more than just confirm constitutionality.  Roe v Wade, for example, defined and expanded a constitutional right to privacy that was never previously made explicit in the original document.  

 

[DrmDoc]

3 hours ago, MigL said:

You guys are full of crap.

If SCJ don't interpret/make law, then why all the hand-wringing over whether they are Conservative or Liberal. or, pro-life or pro-choice ?
It shouldn't matter if all they do is confirm the constitutionality of laws passed by the Legislative branch of Government.

It matters when a majority of our SCJ rule a law or lower court ruling to be either constitutional or not constitutional.  If a law or rule is judged to be constitutional, then that law or rule is enforceable and must be honored by the various governing bodies of our country who are charged with maintaining our social order, freedom, and stability.  Conversely, an unconstitutional law is unenforceable and our citizens cannot be compelled to adhere to that law.  Our society is comprised of both Conservative and Liberal citizens who want these SCJ rulings to reflect their differing ideas and values.  The "hand-wringing" comes when our court's rulings appear to lean in a partisan or political direction incongruent with the separate ideas and values each side holds--which is why we want Justices on our Supreme Court who are likely to constitutionally validate laws that favor our views over the oppositions.

[MigL]

As you yourself alluded to, and TheVat explained, the Constitution is a 'fluid' document, that changes with changing societal norms ( except for that pesky 2nd Amendment, which resists change ). 
SCJ interpret these 'changes' in society and whether laws reflect and comply with those changes. This is, of course, strictly subjective, and the reason why it matters if a SCJ is a Conservative or a Liberal.After all, there was no such thing as abortions when the Constitution was written, so how can they be legal according to the Constitution ( as written ).

[Endy0816]

7 minutes ago, MigL said:

As you yourself alluded to, and TheVat explained, the Constitution is a 'fluid' document, that changes with changing societal norms ( except for that pesky 2nd Amendment, which resists change ). 
SCJ interpret these 'changes' in society and whether laws reflect and comply with those changes. This is, of course, strictly subjective, and the reason why it matters if a SCJ is a Conservative or a Liberal.After all, there was no such thing as abortions when the Constitution was written, so how can they be legal according to the Constitution ( as written ).

Can legally amend the Constitution or even rewrite it entirely, so it is definitely a living document in that sense.

There's nothing in it one way or the other regarding SC interpretation though. Personally agree it is necessary, but opinion varies.

 

Various herbs historically have been used as abortificants.

[zapatos]

29 minutes ago, Endy0816 said:

Various herbs historically have been used as abortificants.

Quote

Leaders didn’t outlaw abortion in America until the mid-1800s. From colonial days until those first laws, abortion was a regular part of life for women. Common law allowed abortion prior to “quickening” — an archaic term for fetal movement that usually happens after around four months of pregnancy.

https://www.plannedparenthoodaction.org/issues/abortion/abortion-central-history-reproductive-health-care-america

[MigL]

How about reading your own link ...

"Medical literature and newspapers in the late 1700s and early 1800s ... Reproductive care including abortion was unregulated in those days."

IOW, no laws.
 

2 hours ago, MigL said:

so how can they be legal according to the Constitution ( as written ).

 

[mistermack]

Stop press ! 

Supreme court rules that you can beat your slaves as much as you consider necessary :

https://www.law.cornell.edu/supremecourt/text/60/393  

 

 

[iNow]

Your point? That ruling was a huge mistake, but it was also inline with the original constitution and after the Civil War the 13th and 14th Amendments overturned it. That’s how the system is supposed to work. 

[mistermack]

9 minutes ago, iNow said:

it was also inline with the original constitution

Nice constitution. All men are considered equal. 

[iNow]

2 minutes ago, mistermack said:

Nice constitution. All men are considered equal. 

That wasn’t the constitution. It was the Declaration of Independence, not itself a governing document. It’s also why the constitution was later amended. 

[mistermack]

16 minutes ago, iNow said:

That wasn’t the constitution. It was the Declaration of Independence, not itself a governing document.

Oh yes, that's ok then. Jefferson certainly didn't feel bound by it, as he owned 600 slaves in his time. And fathered a few as well. 

[DrmDoc]

12 hours ago, MigL said:

As you yourself alluded to, and TheVat explained, the Constitution is a 'fluid' document, that changes with changing societal norms ( except for that pesky 2nd Amendment, which resists change ). 
SCJ interpret these 'changes' in society and whether laws reflect and comply with those changes. This is, of course, strictly subjective, and the reason why it matters if a SCJ is a Conservative or a Liberal.After all, there was no such thing as abortions when the Constitution was written, so how can they be legal according to the Constitution ( as written ).

The US Constitution is the foundation for all laws in our country and it is the SCOTUS job to reconcile these modern times with that foundation.  The laws that permit and regulate abortion in our country must be tracible to our constitutional foundation in some discernable way.  For example, the laws that govern abortion are tracible to the laws in our Constitution that govern personal freedom and whether government has the right to abridge that freedom.  If a law can be traced to the Constitution, then it can be adjudicated on that basis and, if it cannot, then the law is invalid and must be dismissed on that basis.  These modern times doesn't have to appear in the wording of the Constitution, but their laws must be based on that foundation. 

Edited February 27, 2022 by DrmDoc

[iNow]

8 minutes ago, mistermack said:

Oh yes, that's ok then. Jefferson certainly didn't feel bound by it, as he owned 600 slaves in his time. And fathered a few as well. 

Again, I’m certain you have a point of some sort buried here, but I’ll be damned if I know WTF it is

[J.C.MacSwell]

4 minutes ago, DrmDoc said:

The US Constitution if the foundation for all laws in our country and it is the SCOTUS job to reconcile these modern times with that foundation.  The laws that permit and regulate abortion in our country must be tracible to our constitutional foundation in some discernable way.  For example, the laws that govern abortion are tracible to the laws in our Constitution that govern personal freedom and whether government has the right to abridge that freedom.  If a law can be traced to the Constitution, then it can be adjudicated on that basis and, if it cannot, then the law is invalid and must be dismissed on that basis.  These modern times doesn't have to appear in the wording of Constitution, but their laws must be based on that foundation. 

I know it is a difficult subject, but has a Federal Law ever been passed allowing full access to abortion with no restrictions?

[mistermack]

7 minutes ago, iNow said:

Again, I’m certain you have a point of some sort buried here, but I’ll be damned if I know WTF it is

Nothing really, just that the supreme court has been political for a very long time.

[MigL]

This shouldn't be that difficult ...

Late 1700-1800s, there are no abortion laws, so nothing to decide whether constitutional or not.

Early 1970s, there is laws regarding abortion, and in 1973 ( Roe vs Wade ), the SC decided that those laws were unconstitutional in their application ( the amount of Government restriction on a woman right to choose ).
The laws were not rewritten, nor was the Constitution, but the SCJs decided the applicability of those laws.

That is why most of us prefer liberal leaning SCJ, who change their opinions with changing societal norms, and not SCJ who advocate beating your slaves, or going back to making abortion illegal under any circumstance.

The elected representatives who make the laws are responsible to the people that elect them, SCJs, on the other hand, are appointed, yet have a large sway over how laws are interpreted and applied.

You didn't use to sound like a snowflake every time you responded to me, Zap.
I hope the above was more 'un-dick-like'.

[zapatos]

1 minute ago, MigL said:

You didn't use to sound like a snowflake every time you responded to me, Zap.

I guess I did something to piss you off some time. My apologies for whatever it was.

[DrmDoc]

14 minutes ago, J.C.MacSwell said:

I know it is a difficult subject, but has a Federal Law ever been passed allowing full access to abortion with no restrictions?

No specific Federal law, but legal rulings on the regulations governing same have been rendered by the SCOTUS that legally permitted the practice.

[J.C.MacSwell]

1 minute ago, DrmDoc said:

No specific Federal law, but legal rulings on the regulations governing same have been rendered by the SCOTUS that legally permitted the practice.

So essentially they make Laws, when lawmakers fail to do so.

[iNow]

20 minutes ago, mistermack said:

Nothing really, just that the supreme court has been political for a very long time.

Agreed. In practice, most courts almost always are. Thanks for clarifying. 

[DrmDoc]

8 minutes ago, J.C.MacSwell said:

So essentially they make Laws, when lawmakers fail to do so.

No, they do not make laws, they merely decide whether a law is constitutional.  If that law is constitutional, then it has a compelling governing force among our citizenry; if it is unconstitutional, then those who engage practices against that law do not have to fear legal reprisals and may engage those practices freely. Laws are proposed by the Legislative branches of our government and do not become law until they are signed by the Executive branches of our government.

Edited February 27, 2022 by DrmDoc

[J.C.MacSwell]

16 minutes ago, DrmDoc said:

No specific Federal law, but legal rulings on the regulations governing same have been rendered by the SCOTUS that legally permitted the practice.

How is this not making Laws?

[zapatos]

In a political science class I took in college we were told that courts DID make laws. Whether or not you accept that depends on how you define 'making laws'. Courts don't write the legislation, but they may find, for example, that the Constitution limits the extent of the law, in effect changing the law so that it is different from the way it was presented by Congress. It is almost as if making the law was a team effort between legislators and courts.