Senate rules are in place prevent a tyrannical majority from abusing power...

[woolfe9999]

The Constitution says absolutely squat about what the SC can consider in making its rulings. Art III is pretty damn short. (btw, where does the const say the SC can't look to foreign law in interpreting our laws?) Centuries of jurisprudence and existing and developing common law have guided the court. The court may have on occassion looked to foreign jurisdictions as examples or for illustration, but I'm not aware of any decision where a law passed by a state in our union or one passed by congress was ruled unconstitutional based in any part due to conflict with a foreign law (not treaties). I'm not even aware of any ruling they made where they cited a foreign law (not treaty) as the sole justification for the ruling. If I am incorrect, please point out where that happened.

Correct. When any court, be it the SC or any other, cites foreign law, it is always for its persuasive value, not as binding precedent. This practice dates back through several hundred years of common law, inside the U.S. and in other common law systems. Typically this occurs when there is an absence of U.S. binding precedent on a particular issue, a ruling of a foriegn court is cited because the court approves of its reasoning and the reasoning is then used to support the court's decision. BTW, the foreign court cited is virtually always a UK decision, because our system of common law was derived from the British system. Back in the 19th century, before we had adopted a robust set of judicial precedents, and before we had codified virtually everything, U.S. courts repeatedly relied on British rulings as persuasive authority. Nowadays, we have our own statutes and decisional precedents, which are binding, so we do not do this very often.

- wolf

 

[Darwin333]

So my question about all this is, do you honestly think that the quoted section of the bill would actually be successful in preventing alteration of the act by a future Congress? I can't see how any rational person would think so. So if it doesn't, then who cares?

The more interesting question, at least to me, is why include it in the first place?

 

[werepossum]

The Constitution says absolutely squat about what the SC can consider in making its rulings. Art III is pretty damn short. (btw, where does the const say the SC can't look to foreign law in interpreting our laws?) Centuries of jurisprudence and existing and developing common law have guided the court. The court may have on occassion looked to foreign jurisdictions as examples or for illustration, but I'm not aware of any decision where a law passed by a state in our union or one passed by congress was ruled unconstitutional based in any part due to conflict with a foreign law (not treaties). I'm not even aware of any ruling they made where they cited a foreign law (not treaty) as the sole justification for the ruling. If I am incorrect, please point out where that happened.

Unfortunately you are correct; justices take no oath to uphold and support the Constitution, most people just assume they do. However my point is not that SCOTUS is or should be limited to interpreting the Constitution, merely that historically that was the case and no longer is. Relying on SCOTUS to overturn something that is unconstitutional is no longer a reasonable bet. As you point out, there is absolutely nothing keeping them from using foreign law or personal whim from ruling in a particular case; the Constitution was originally reliant on judicial restraint. (And almost has to be - witness FDR's attempted court packing for the dangers of giving another branch too much control over the judiciary.)

This however is my point - law in America today is whatever you can convince five justices that it should be. There is little judicial restraint, there is little consideration of the original intent of the Constitution nor even of Congress. SCOTUS has exactly as much power as it wishes to seize. Liberals are generally supportive of this because SCOTUS has been much more friendly to the liberal agenda than have voters or Congress, but it's foolish to deny that it is so.

 

[Darwin333]

You can thank the GOP do nothing party that has allowed the bill to be watered down. It allowed a handful of independents and hick state democrats to strip down the bill and profit hugely.

Can't complain if you support the party that removes 40 senators from the legislative process completely on the basis of trying to hurt the opposition.

You're running a bit far with Craig's argument.

And the last sentence is a flat out lie. They may want to help the Dems kill the bill for political gain but the Republicans oppose the entire basis of the Democrats healthcare bill. If a Republican or independent introduced the exact same bill they would still oppose it.

OTOH, the Republicans are just as sleazy as the Democrats are. If they would have tried to bribe a few Republicans from the start they might not be in the jam they are in now.

 

[jonks]

Unfortunately you are correct; justices take no oath to
uphold and support the Constitution, most people just assume they do.

That's a bit misleading. They do take an oath, it's just not the same exact wording as other federal employees. But it's not really important since you imply they don't follow the oath they actually did take, so how would that change if they did swear to uphold the constitution? I can think of some presidents who didn't take that oath at all literally...(another thread entirely)

However my point is not that SCOTUS is or should be limited to interpreting the Constitution, merely that historically that was the case and no longer is. Relying on SCOTUS to overturn something that is unconstitutional is no longer a reasonable bet. As you point out, there is absolutely nothing keeping them from using foreign law or personal whim from ruling in a particular case;

Actually I pointed out that foreign law was merely persuasive at best and not binding on the court. If a foreign court had considered a particular factual matter many times and the SC was encountering it for the first time, it would be pretty dumb to reinvent the wheel when similar judicial systems had analyzed the issue already. SC doesn't have to follow it but reading up on it sure seems like the academically rigorous thing to do.

As to "whim", that's why there are 9 justices. Sure, if a judge doesn't mind being thought of as an idiot they can not explain their decision, but the judges get together before deciding and talk a great deal about how they are voting and why. Any "whim" had better be backed by valid interpretation of case law, over which reasonable persons can disagree.

the Constitution was originally reliant on judicial restraint.

Where does it say that? Marbury v. Madison didn't take very long to pop up.

This however is my point - law in America today is whatever you can convince five justices that it should be. There is little judicial restraint, there is little consideration of the original intent of the Constitution nor even of Congress. SCOTUS has exactly as much power as it wishes to seize. Liberals are generally supportive of this because SCOTUS has been much more friendly to the liberal agenda than have voters or Congress, but it's foolish to deny that it is so.

How is this different from how the court has always existed? Judgicial deference has waxed and waned through the decades, it is not a constant. From Marbury v Madison, which was quite a while ago, the court took power unto itself that wasn't explicitly granted by the constitution. If you want to argue Marbury was judicial overreaching then you recognize courts haven't just started up this whole "making decisions" thing that they do.

Original intent (and legislative intent in general) is overrated as a guiding principle since the constitution was drafted by dozens of people with frequently conflicting ideas who proposed or accepted the ultimate language for varying reasons. How the constitution applies in a modern time must be taken into account and not simply ignored in favor of what 9 out of 14 drafters agreed upon 200+ years ago. Granted, this may be a philosophical difference, but people only seem to complain when the court rules against them that the court overreached, and rarely if ever is that argument made when the chips fall their way.

Liberals are probably supportive of courts weighing in on issues because our legislatures have grown into unwieldy bureaucracies. Conservatives of course would like nothing to change, ever, so are given to judicial restraint as they are given to legislative restraint as they are strangely given to executive excess.

 

[Fern]

Since the Warren Court nothing is guaranteed to be unconstitutional. Instead, SCOTUS views itself as the ultimate arbiter of what society should be, not as the ultimate arbiter of what the Constitution says. For instance, justices sometimes quote foreign laws as justification for dismantling US laws. If five Clowns in Gowns decide this should stand, it will stand.

I do use it a lot, and I use it correctly. In fact I feel like I'm sort of the 'straw man police' on here because of how frequently I have to correct people on the issue. You stated that the Supreme Court considers its position to be the ultimate arbiter of what is good for society as opposed to how to interpret the Constitution. This deliberately and deceitfully misrepresents the USSC's position, thus making it easier for you to defeat it. Hence, it is a straw man of the USSC's position as I mentioned to Craig earlier. You could also say it's merely a gross distortion and an unfounded smear, but in this case it can easily be both.

The majority of the members of the US Supreme Court are not strict constructionalists and therefore they take into account the society around the Constitution when thinking of how to apply it. (even Scalia says he's not a strict constructionalist) There's your answer.

You seem to think differently (which is fine), but you have far less expertise to back your opinion up than they do. Your contempt for education and qualifications are clearly on display here but they just make you look bad, not them.

I don't see a whole lot of difference in your (werepossum & Eski) positions on the court as regards "society". Seems mostly semantical to me.

And Eski, your phrase "take[ing] into account the society around the Constitution when thinking of how to apply it" is a bit vague. How do they "take into account"? Is it current societal norms? Or what they think societal norms should be? Or how to decipher the Constitution, regardless of it's plain language, for the best interest of our current society?

The SCOTUS ruled slavery was constitutional. IMO, it can be fairly said that they took into account current societal norms, as slavery was common then.

But in the case of abortion rights, looks more to me like it's how they wanted society to be. Abortion wasn't a common societal practice as it was outlawed. Nor did it have the support of the majority of people; if it had a law could have been passed legalizing it.

In the recent 2nd amendment ruling they gutted the 'collective right', a right they had previously recognized. Looks to me like they ruled, contrary to plain language etc, on outlawing military grade weapons because they felt it was in the best interest for our current society. While that it understandable, in their previous ruling the individual was ruled no right to the weapon precisely because it wasn't the type commonly employed by the military.

I.e., there is evidence that they have on occasion ruled as werepossum claims.

As regards foreign laws quoted in SCOTUS decisions - I have seen this. The foreign laws were used to help interprete the Constitution because some elements or 'laws' therein had their basis in legal concepts originating long ago in foreign countries. E.g., many of our laws are based on English common law. I.e., our founding fathers borrowed some of what they considered the best of existing laws/concepts previously developed by other countries.

I can't recall seeing a domestic law found unconstitutional because it conflicted with a foreign law (if that's what werepossum is saying).

Fern

 

[IndyColtsFan]

You can thank the GOP do nothing party that has allowed the bill to be watered down. It allowed a handful of independents and hick state democrats to strip down the bill and profit hugely.

Can't complain if you support the party that removes 40 senators from the legislative process completely on the basis of trying to hurt the opposition.

 

[cubby1223]

You gobble ideology and it sounds like a turkey. Gobble gobble.

Whatever you want to say...

You have less than a year left on your "progressive" vision before you will no longer have control over congress.

 

[Craig234]

double post

 

[Craig234]

First, congrats on sounding like gobble gobble that post. Second, progressives aren't in power - they're getting screwed and ignored by both the Republicans AND the corporatist wing of the Dems.

We've never had a progressive government, really.

The closest we've come was FDR, and he was not really progressive.

There was a period called 'the progressive era', and for its time it was, but ending the government having troops shoot strikers because unions are illegal, ending child labor, letting women vote... come on.

If you could take a moment and be honest, you would have a hard time not admitting how progressives have been proven right consistently.

It was *progressives* who were against the financial sector becoming too big to fali and the deregulation that led to the crisis. It is *progressives* who are for real healthcare reform that helps people and against the corproate dominance that's screwing the public that this bill is showing. It was *progressives* who led the batttles against the abuses of the Bush administration, including when his 80-90% approval ratings had so many others saying how nice the emperor's clothes looked while he did terrible policies.

It was progressives who were right on the policies to build our middle class, and opposed to the corporatist policies that are gutting it; progressives who were right on racial injustice before others, and so on.

Can you be honest like that and notice how progressives are right again and again and again?

Or do you just mindlessly attack them however right they are?

 

[CPA]

easily changed, absolutely not a big deal in the slightest.

Never ceases to amaze me how quickly people find 'tyranny' behind every corner when the party they like less is in power. Maybe John Stewart was right though, some people confuse 'tyranny' with 'losing'.

Please, you would have went ballistic if the Repubs did this for some bill during the Bush administration.

 

[fskimospy]

Please, you would have went ballistic if the Repubs did this for some bill during the Bush administration.

So your counter argument is based on what you think I would have done in a magical world that doesn't exist.

Persuasive.

If we could get rid of the 'HURF BLURF LET ME TELL YOU WHAT YOU WOULD DO IN THESE CIRCUMSTANCES' posts, this board would be a lot better off.

 

[rudder]

A little info on why Dems have to get around Republican obstructionism, as I recall from a radio show:

In the 1960's, percent of legislation the Republican minority did or threatened to filibuster: 8%
By the 1980's: 25%
After the Republicans lost Congress in 20076: 70%

Including Republicans filibustering a recent Department of Defense bill including pay for troops.

As the host put it, Republicans took a pretty much "anything goes to stop healthcare" position.

Except the dems have a majority. How can they stop the healthcare bill? Oh yeh its the dems that are afraid of not getting re-elected by going against the desires of the american people. I know if members of congress were to listen to the majority on every issue... well there would be no need for them as we as a public could vote what we wanted. So congressmen sometimes must decide what is best for their constituency. However in this case the opposition is so loud from a majority of americans that they need to listen.

And the department of defense bill... what else was in it? I am sure it wasn't filibustered just because it included a troop pay raise.

 

[CPA]

So your counter argument is based on what you think I would have done in a magical world that doesn't exist.

Persuasive.

If we could get rid of the 'HURF BLURF LET ME TELL YOU WHAT YOU WOULD DO IN THESE CIRCUMSTANCES' posts, this board would be a lot better off.

No counter-argument, we all know your hypocracy.

 

[IndyColtsFan]

Except the dems have a majority. How can they stop the healthcare bill? Oh yeh its the dems that are afraid of not getting re-elected by going against the desires of the american people. I know if members of congress were to listen to the majority on every issue... well there would be no need for them as we as a public could vote what we wanted. So congressmen sometimes must decide what is best for their constituency. However in this case the opposition is so loud from a majority of americans that they need to listen.

And the department of defense bill... what else was in it? I am sure it wasn't filibustered just because it included a troop pay raise.

That is exactly what is happening. The liberals on this forum love to spin it differently, however -- the Republicans are to blame for all of it and those Democrats refusing to vote with their party are not "real" Democrats.

Of course many of these same liberals were the ones talking smack once the Democrats gained supermajorities as a result of the last election, saying things along the lines of "we can pass our agenda now and there isn't a damn thing anyone can do about it!" What do you expect from a party led by Reid and Pelosi?

 

[fskimospy]

No counter-argument, we all know your hypocracy.

I'm sure the mirror universe Andy with a goatee would totally go ballistic if this happened under the Bush administration. But he's the one with the goatee, so he's evil anyway.

Once again, amazing argument on your part.

 

[Craig234]

Except the dems have a majority. How can they stop the healthcare bill? Oh yeh its the dems that are afraid of not getting re-elected by going against the desires of the american people. I know if members of congress were to listen to the majority on every issue... well there would be no need for them as we as a public could vote what we wanted. So congressmen sometimes must decide what is best for their constituency. However in this case the opposition is so loud from a majority of americans that they need to listen.

And the department of defense bill... what else was in it? I am sure it wasn't filibustered just because it included a troop pay raise.

Another post lost to the system logging out and having t be redone.

Your post isn't reallly about the same thing as the post you quoted. My post was providing information showing the radical increase of Republican filibustering over historical norms.

This 70% filibustering isn't what the filibuster was made for. It's an abuse, it's the Republicans who can't deal with not winning the majority and saying they'll trash the operation.

On the defense bill, it's not about the contents - it's the Republicans using the defense bill - which includes troop pay - to try to slow healthcare, as they admitted.

These are the same modern radical types who irresponsibly were willing to shut down the government earlier for politics.

 

[Pneumothorax]

You can thank the GOP do nothing party that has allowed the bill to be watered down. It allowed a handful of independents and hick state democrats to strip down the bill and profit hugely.

Isn't this like blaming a rape victim for wearing too high of a mini-skirt?

 

[ProfJohn]

Except the dems have a majority. How can they stop the healthcare bill? Oh yeh its the dems that are afraid of not getting re-elected by going against the desires of the american people. I know if members of congress were to listen to the majority on every issue... well there would be no need for them as we as a public could vote what we wanted. So congressmen sometimes must decide what is best for their constituency. However in this case the opposition is so loud from a majority of americans that they need to listen.

And the department of defense bill... what else was in it? I am sure it wasn't filibustered just because it included a troop pay raise.

The Republicans filibustered the DoD bill in order to slow things down and try to force the health bill into next year. There were a few Dems who did not want to vote for the bill because of the expanded troop action in Afghanistan thus the Dems needed to make them happy or get some Republican votes.

 

[FerrelGeek]

Normally I would agree with you, but Reid said some truly ridiculous shit equating the opposition to opposing suffrage, supporting slavery, etc. As for changing healthcare - it's not a good sign when even huffingtonpost is calling out things on the health care bill.

Reid reminds me more and more of Palpatine. Alas, the dark side of the force has a profound effect on the weak-minded.

 

[Craig234]

Isn't this like blaming a rape victim for wearing too high of a mini-skirt?

No.

 

[ProfJohn]

No.

Craig the Democrats control everything!

And yet they can't pass this bill without $100 million payoffs to members of their own party.

Why is that?


You would think that if it was a good bill they wouldn't have to bribe their OWN members into voting for it, right?

 

[EagleKeeper]

Craig the Democrats control everything!

And yet they can't pass this bill without $100 million payoffs to members of their own party.

Why is that?


You would think that if it was a good bill they wouldn't have to bribe their OWN members into voting for it, right?

Do not bring political common sense/logic into the argument.

Note that the Civil Rights acts was passed with over 70% in favor

Democratic Party: 46-21 (69%-31%)
Republican Party: 27-6 (82%-18%)

Apparently for a good bill, there is no problems with the Republicans coming on board. And the Democrats also has a super majority at that time.

In fact notice that the Dems percentage was twice as much more against the bill than the Republicans.

And the Civil Rights bill was reworked to satisfy objections of Republicans and Democrats.

AGAIN, why are the current Democratic leaders so fearful to allow this bill to full scrutiny and ensure that was is best for the country to be implemented; instead of that the leadership feels is best for their political ambitions.

Hopefully the joint session in January will affect the bill so much that either the House or the Senate will reject it and a proper bill that actually address Health Care Reform will be created vs a bill that shifts/forces costs on others.

And why should this bill only apply to legal citizens/US Residents?
Why are the illegals getting a free pass?

 

[Fear No Evil]

So I can haz free healthcare now?

 

[Craig234]

Craig the Democrats control everything!

And yet they can't pass this bill without $100 million payoffs to members of their own party.

Why is that?


You would think that if it was a good bill they wouldn't have to bribe their OWN members into voting for it, right?

First, my post was about a bad rape analogy, so you did not address it whatsoever with your post.

But on to your post now. Filled with the confusion so frequent.

First, let's again clarify the word 'bribe' you abuse. Since your attack includes something very common by both parites in the normal legislative process, let's be clear a bribe is something else - an illegal payment for PERSONAL gain. Pretty much every bill someone votes for has some gain for the members. Why do you think military contractors build parts in so many states? TO give the congressmen jobs benefits. When you note that if the weapon systrem is justifed for the good of the natrion, it shouldn't matter where the jobs are, you are starting to get it. But that's ot usually called a "bribe". it benefits their state.

The word bribe is just misleading hyperbole by you - shock - when you pretend this isn't the norm.

Many bills don't have these benefits on the sid e- they're what the bills are about.

But yes, it is financial benefit to his state to win his vote.

Funny, when the Republicans were out twisting arms on the floor to pass the Medicare part D big pharma giveaway, I dn't recall you protesting the financial benefits used to get their votges. I do't even recall you protesting the *bribes* - for personal gain - like the offer to one to give $100,000 to his son's camaign if he'd change his vote. (On party unity, note some Republicans opposed Medicare part D and needed those 'incentives'). But let's move past your hypocrisy to discuss the issue.

The question you ask is why they have to provide such incentives to their own party if the bill is good.

First, throw out the 'own party' nonsense. While thereis some pressure to support the party, it's hardly a guarantee, and the fact we're talking about Dems who refused to support the bill shows that.

So your reeal question is, if it's a good bill why are the financial gveaways needed?

There can be different answers to that question. Some involve 'that's how things are done'; another is, what if the politician is from a state where the public is against the bill? He may need some bonus to be able to sell the vote for the bill to his state. That doesn't make a bill necessarily bad just because some states oppose it - most bills have some states against it. Vermont and Texas are known to occassionally disagree.

Your real argument is simply that the fact that it's a close vote - not close by the 50 vote standared, but by the 60 vote standard - and the last few votes need financial bonues - prove whether the bill is good.

And that's wrong. The bill may be terrible - I've said it has a lot of bad - but not for the misguided reasons you list that the incentive was needed for a vote.

I think you can criticize this financial incentive being needed - bt it can easily be more about accusing the Senator of voting for a bad bill in exchange for a benefit, as about criticizing the bill.

Who's to say whether his reluctance is his having a wrong position on a bad bill, or a right position on a bad bill?

I know this isn't likely to help your confusion, but it's there for you. Unfortunatelyu, I suspect you are just grabbing any issue you can attack the bill with and couldn't care less about the questions you raised.

In short, there are issues with the benefit given to the Senator's state, but they're a lot more broad than this bill and the do't necessarily prove anything wrong with this bill.