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Discussion Starter #1
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In 1803 Chief Justice Marshall wrote: ”The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” ______ MARBURY v. MADISON, 5 U.S. 137 (1803)

Unfortunately, our Supreme Court has found a clever process to circumvent both the text, and legislative intent of our constitution as it was expressed during its framing and ratification debates … debates which give meaning and context to our Constitution’s text. During this process the very limits agreed to by the people in a written constitution are set aside and replaced by the arbitrary whims and fancies of the Court’s majority, which is then asserted to be the rule of law, but in effect is judicial tyranny. The mechanics of this subversive process is very interesting to study.

One of the Supreme Court‘s methods used to set aside the limits of our constitution are various tests the Court has invented which were unknown to our Founders. These “tests” began to appear and gain a foothold during the Warren Court. One such test [e.g., see Loving v. Virginia, 1967] was the rational based test under which a law being challenged had to withstand the Court’s judgment that the law in question was “rationally based” or “reasonable” to survive the Court‘s review. Of course, this allows the Court’s members to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with the constitutionality of the law.

Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.

For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.

Keep in mind our wise Founders provided Article V, our Constitution’s amendment process, to change our constitution’s commands and upgrade it to accommodate changing times. And unlike a renegade majority cabal on our Supreme Court ignoring our Constitution’s text and legislative intent, and imposing its personal whims and fancies as the rule of law, our Constitution’s amendment process requires consent of the governed by the limits outlined in Article V, when and if a defect is alleged to be found in our Constitution and change is required.

By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], effectively began to hand down majority opinions which were not based on the text and the documented intentions and beliefs under which our Constitution was adopted. The Court, using this new “test” process to validate its opinions, began to impose its own subjective ideas of social justice, fairness and reasonableness as the rule of law and without regard to the true intent and meaning of our Constitution.

Some of the important cases which demonstrate the Court’s assumption of legislative power by second guessing the wisdom of legislation using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), and Craig v. Boren 429 U.S. 190 (1976).

It is also important to note that the ACLU and Ruth Bader Ginsburg, who was a volunteer for the American Civil Liberties Union in the 1970’s, were both active in these cases and assisted the court in inventing clever words and phrases in conjunction with “tests” which were designed to replace our Constitution’s meaning, and in particular the 14th Amendment, with the personal feelings of what the Constitution should mean as believed by a majority of the Court’s members.

In each of these cases the limits of our Constitution were ignored and replaced with the personal and subjective views of Justices as being the rule of law, rather than enforcing the Constitution’s actual text and legislative intent as expressed during its framing and ratification debates.

The bottom line is, for our system to work and evolve as intended by our Founders, and when judges and Justices sincerely believe our Constitution, or a legislative Act, is an affront to their personal sense of fairness, reasonableness or justice, they should express these feelings in minute detail, but go on to explain their job is limited to establishing the true meaning and intent of our Constitution, while Article V is the proper method for change. For judges and Justices to ignore these limitations and impose their personal feelings as the rule of law, is to violate a Public Trust and engage in judicial tyranny.

JWK


"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story
 

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I think the closest person we had that believed the constitution was a living document that was meant to be interpreted inline with the times was Antonin Scalia. He understood that we should be able to defend ourselves against a tyrannical government with comparable weapons. Back in the 1700s that had flintlocks we had better Kentucky long rifles and won! People today are too eager to give our god given rights away! Much blood has been spilled by patriots for us to have those rights I’m in no hurry to just give them away because some hack says so.
 

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The common anti gun argument is that our Founders could have never imagines the types of weapons we have today, therefore; they would have never allowed the people to own them.

This is Ridiculous on many fronts but it is also an arrogant statement made by those who believe they are all knowing yet really are nothing more than a modern jester. If this were true in any sense then why is it that today we have movies with teleportation, plasma weapons, killer robots..ETC, Why was Tesla able to write about the modern smart phone over 115 years ago, his details are so fine he practically defined the very technology we use and take for granted everyday.

Are they really saying that today we are so much more educated and imaginative and those of the 18th century were just uneducated fools incapable of dreaming up advances in technology?
 

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Discussion Starter #4
I think the closest person we had that believed the constitution was a living document that was meant to be interpreted inline with the times was Antonin Scalia. He understood that we should be able to defend ourselves against a tyrannical government with comparable weapons. Back in the 1700s that had flintlocks we had better Kentucky long rifles and won! People today are too eager to give our god given rights away! Much blood has been spilled by patriots for us to have those rights I’m in no hurry to just give them away because some hack says so.

The rule being, when the text of the Constitution is unclear or disputes arise as to its meaning, the answer is to be found by documenting the intent of the framers and those who ratified the constitution, during the Constitutions' framing and ratification debates. For example, what was the evil which the founders sought to prevent?

As to our Constitution being a "living document", that life is found only in Article V, a protection demanding the people's participation and consent when change is thought to be necessary.





JWK



The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.
_____HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)
 

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Still waiting for this to start...
"As to our Constitution being a "living document", that life is found only in Article V, a protection demanding the people's participation and consent when change is thought to be necessary."

This is the essence of why the Trump Presidency is so important. Should he get just two more appointments of conservative leaning constitutionalists, the court should be able to steer the republic back toward a more literal interpretation of the Constitution.

Unfortunately, if the Dem's gain control of all 3 branches, I have no doubt they will move to significantly increase the number of SCOTUS's,
 

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Back in the day, I had a prof who said the founding fathers understood deep in our hearts, we're all dirty little fascists, and it was their intent to make a system that would protect us from ourselves.

Sadly, people have found ways to wiggle around many of those protections. Sadder still, is many voted for it.
 

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Discussion Starter #7
Back in the day, I had a prof who said the founding fathers understood deep in our hearts, we're all dirty little fascists, and it was their intent to make a system that would protect us from ourselves.

Sadly, people have found ways to wiggle around many of those protections. Sadder still, is many voted for it.
What you say above, about protecting us from ourselves has great merit! For example, here is how one of our forefathers stated what you wrote:


"The framers of the Constitution guarded so much against a possibility of such partial preferences as might be given, if Congress had the right to grant them, that, even to encourage learning and useful arts, the granting of patents is the extent of their power. And surely nothing could be less dangerous to the sovereignty or interest of the individual States than the encouragement which might be given to ingenious inventors or promoters of valuable inventions in the arts and sciences. The encouragement which the General Government might give to the fine arts, to commerce, to manufactures, and agriculture, might, if judiciously applied, redound to the honor of Congress, and the splendor, magnificence, and real advantage of the United States; but the wise framers of our Constitution saw that, if Congress had the power of exerting what has been called a royal munificence for these purposes, Congress might, like many royal benefactors, misplace their munificence; might elevate sycophants, and be inattentive to men unfriendly to the views of Government; might reward the ingenuity of the citizens of one State, and neglect a much greater genius of another. A citizen of a powerful State it might be said, was attended to, whilst that of one of less weight in the Federal scale was totally neglected. It is not sufficient, to remove these objections, to say, as some gentlemen have said, that Congress in incapable of partiality or absurdities, and that they are as far from committing them as my colleagues or myself. I tell them the Constitution was formed on a supposition of human frailty, and to restrain abuses of mistaken powers.” Annals of Congress Feb 7th,1792 Representative Page


JWK


The poison connected with Alexandria Ocasio-Cortez’s socialism is, the most productive, hardworking wage earners across the country ___ some in our nation’s inner cities who have two and three jobs to extricate themselves from poverty ___ are specifically targeted by Cortez’s taxation and robbed of the bread they have earned, which in turn discourages them to be productive, and thus begins a Nation’s decline.
 

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How many Americans are willing to give up their Liberties for the promise of "Safety".
Many foreigners (Immigrants) come from places where they believe they need protection ie Safety...:mad:
 

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Discussion Starter #9
How our Court has perverted the meaning of “Due Process” as found in our Constitution

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Another method used by our judges and Justices to circumvent our Constitution and impose their personal feelings as the rule of law is a corrupted use of our Constitution’s guarantee to “due process”. Note that our Constitution guarantees due process by the Fifth and Fourteenth amendments.


Amendment V


“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness, against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


Amendment XIV


Section 1


”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.”



So, what is due process of law within the meaning of our Constitution? If we move onto Amendment VI it indicates what “due process” involves.



”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”


In effect, due process of law refers to procedure and the administration of justice in accordance with specific rules intended to prevent the use of arbitrary power by government. Unfortunately the limited and intended guarantee to Due Process of law [rules governing procedure to prevent an abuse of government power] has been distorted and turned on its head to include an oxymoron called “Substantive Due Process”, a phrase not found in our federal Constitution.


Under “substantive due process” the Court ignores procedural rights and puts on trial legislative acts by second guessing the wisdom of law in accordance with the Court’s personal abstract opinions of fairness, reasonableness and justice ___ a subjective view having nothing to do with procedure rights intended to protect against the abuse of power by government.



To put this another way, the Court, using substantive Due Process, does not determine the constitutionality of a law. Instead, it assumes legislative authority and fashions existing laws in accordance with its own personal predictions and beliefs, even though there is no constitutional basis to strike a law down or uphold it.


Of course, the proper way to address laws which are constitutional but thought to be unfair, unreasonable or an injustice, is our Constitution’s Article V amendment process which involves consent of the governed and the reason and choice of the people.


What is most disturbing about the Supreme Court’s use of “substantive due process” ___ a term nowhere to be found in our Constitution ___ it is one of the vehicles used by the Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by our written Constitution. In many instances, Supreme Court majority opinions are nothing more than a reflection of the majorities’ personal views of justice, fairness, and reasonableness, in addition to being political in nature ___ two relatively recent glaring examples being homosexual marriage and abortion, and in each case neither subject matter is within the Supreme Court’s jurisdiction.


JWK


"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" ___ Justice Clarence Thomas, Perry v. New Hampshire, 565 U.S. 228 (2012)
 

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Discussion Starter #10 (Edited)
Lochner v. New York and the feelings of a court as the rule of law

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Our courts are required by our federal Constitution to strike down laws which violate that Constitution. But there is a distinct difference in striking down a law which is not in harmony with the text of our Constitution and/or its legislative intent as expressed during its framing and ratification debates, and, our courts striking down legislation because the court feels the law in question is unfair, unreasonable, or unjust ___ each of which is a subjective opinion.

For example, in Lochner v. New York (1905) the question presented to the Supreme Court was:

Does a state law prohibiting a business owner to allow an employee to work more than 60 hours a week or 10 hours a day violate “liberty”, alleged to be protected by the Due Process Clause of the Fourteenth Amendment?

The Court struck the State law down asserting the statute interfered with the freedom to contract which in turn supposedly violated the Fourteenth Amendment's right to liberty afforded to employer and employee. The majority concluded the law had no rational basis and violated the due process wording of the Fourteenth Amendment.

But nowhere in the wording of Fourteenth Amendment is a state prohibited to enact legislation thought to promote the general welfare of its citizens. The restriction being, under the Fourteenth Amendment is, whatever laws a State enacts, those laws are to be enforced equally upon its citizens.

Yes! The New York law in question does, in my mind, violate an inalienable right to contract. But the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens. For the Court to meddle as it did in this case is to violate the Tenth Amendment and powers reserved by the States and people therein, and circumvent the very purpose of Federalism, our Constitution’s “big tent” plan.

Was the bake shop owner denied procedural rights guaranteed by the Fourteenth Amendment’s due process clause? I found absolutely nothing in the case to remotely suggest procedural rights were denied. What I did find is, the majority on the Court ignored the limitations of the Fourteenth Amendment and projected its personal views of a State law being ”… fair, reasonable, and [an] appropriate exercise of the police power of the state …” as being the rule of law, while it ignored the narrow limitations of the Fourteenth Amendment.

Do we really want our Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by a written Constitution? If so, then we must abide by Article V, our Constitution’s amendment process, and grant this totalitarian power to the Supreme Court.

JWK

As to our Constitution being a "living document", that life is found only in Article V, a protection demanding the people's participation and consent when change is thought to be necessary.
 
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