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Monday, August 29, 2011

What supreme court decision do I disagree with?

What supreme court decision do I disagree with?

While watching an older recorded news program, I was reminded of a question asked of a congressional hopeful: What Supreme Court decision do you disagree with? That person didn't have an answer right then, but said that they'd have something tomorrow.

So what do I disagree with? Well, that's a bit of a toughie. I don't know the exact citation.

But somewhere, in our history, is a Supreme Court decision that says that not only are the decisions of one specific case valid for that one case, but also that the opinions of the one judge that wrote up the case are in fact just as valid in all cases.

It doesn't matter if it's a 5-4 decision on ideological lines; there is no need for compromise, no need for unanimous agreement (just imagine if a 7-5 jury could put someone away for life; we require those to be unanimous and they affect less than a supreme court ruling does), and no peer review or any fair appeal. Examples? Way too many to list. But an early one is McCulloch v. Maryland (*). These generally have something in common: The decision is valid (e.g.: The federal government has full authority to run a bank. E.g.: "Citizens United": The FEC's regulations are too restrictive and harm free speech), but the opinion is complete bunk (e.g.: There are NO restrictions of any kind on what the government does, as long as it is trying to fulfill the list of congress' powers. E.g.: Corporations have full first amendment rights of free speech, arguably stronger than normal people do, stronger than any right to an undistorted election.). And the opinion becomes binding. Why?

Somewhere there is a Supreme Court decision that says that the SC is the only agency able to determine what the constitution actually says, and that no plain text reading by ordinary people is valid. No jury can decide what is constitutional; only judges, and only supreme court judges. (Just like the holy pope, or in our case, the nine holy popes of the constitution in washington, imbued with infallibility whenever they are making determinations about the constitution.) Certainly not congress or any elected official. It's not like congress can say "Here, by law, is where we draw the line between two rights that are in conflict", and the courts then say "Yes, that's a valid line", or "No, it's not -- try again, take X into account". Oh, and the courts can arbitrarily change their mind with time. After all, the courts are not actually amending the constitution, right? Examples? You're kidding, right? Way, way too many to list. But recently, how about ruling that the first amendment triumphs everything else -- the right to free (interpreted as "unrestricted no matter the cost") speech by non-people entities is stronger than the right of people to fair elections, and doesn't restrict the "free" (interpreted as "no cost thanks to the internet") speech of poor people (who can no longer afford the normal limited speech channels). That's "Citizens United v. F.E.C.". Yep, even though poor people have unrestricted no cost speech -- must be true because the judges declared it so -- unrestricted no cost political speech is too restrictive on corporations.

Somewhere, there is a SCOTUS decision that says that when a judge makes an opinion that affects everyone, that isn't a law, even though it has the force of law -- it is only judicial precedent, binding on courts, altering what people can do -- but not a law, because only congress has legislative authority. Not courts.

Somewhere, there is a court case saying that courts are courts of law, not justice. This starts way back in British Common Law -- where it was valid, courts were courts of law. It did not matter if a decision was unjust, and even the judges said so -- there are recorded british cases where judges said "This is not just, but it is the law". And somewhere, there is a Supreme Court of the United States decision that hold that this is still true here, even though that ruling is directly in contradiction to the Constitution of the United States (Preamble: "Establish Justice". Amendment 1: Right to petition the government for redress of grievances. Amendment 9: Right to additional rights not explicitly listed, such as fairness and/or justice; right to a fully informed jury ruling against an unfair law; etc.).

Somewhere, there is a court case saying that the term "Corporate Personhood" or "Corporate Personage" -- which originally meant only that the East India Trading Company could sign documents and represent its interests in courts -- means more than just "This corporation is a legal entity" ("Corporate legal entityhood" is a better term), but that this corporation has all the rights of people, except voting. And sadly, it doesn't seem to be the well-known Santa Clarita v. Union Pacific tax case -- remember, the 9 judges in that case said that they were all too prejudiced in their belief on that point to even consider it. Somewhere earlier than that are cases where the ability to sign documents and represent interests in court are sufficient to give you full authority and rights of a person, because the name of the legal term contains "person" instead of "entity".

And finally, there is a Supreme Court decision that says that the 'more perfect union' clause of the preamble implies that the entire constitution is just an add-on to the perpetual union of the original government founded in 1776; hence, our 1789-based government has to follow the same 1776-government documents unless explicitly overturned. While that seems very strange -- just ask Rhode Island if they agreed under the "changes must be unanimous" clause (they did not) -- just ask any state after the original 13 if this is what they agreed to -- it was used recently when Texas tried to leave the union, only to be told "Sorry, you are now a prisoner".

What do I disagree with? That the courts have more power than congress, more power than the constitution, more power than anything or anyone else. And it's time to use the 14th amendment, section three, to have the Senate remove these jerks from the bench.

What do I think is a valid power of the SCOTUS? Simple. Issue rulings on judicial behavior and actions. Issue clarifications of law. They are an appeal court, not a court of origin. They do not have fact finding authority, they have legal proceeding authority. (Well, except for those few types of cases where the constitution grants them original jurisdiction. Those are the exception.)

They can tell other judges "You did X wrong", and send cases back to lower courts.
They cannot determine facts and truth on their own.

For example, "We disagree with the trial court, and the appeal court, both of which certified this class. We feel that X was not taken into account. The standard to be a class is now Y" -- must be followed with "Now go back to the lower courts and establish Y". Not "Sorry ladies, you cannot sue Walmart as a class".

Make a decision on the law, and send the case back to lower courts for final facts? Fine.
Have decisions be the highest law? Fine.
But not higher than the constitution. Unconstitutional laws can be overturned by any court.
Have the ability to arbitrarily affect everyone else in the country? No, that's Congress' job.

Have the ability to impose any ruling that they want, with no peer review, with no oversight, as a ruling body in violation of the "republican" clause of the constitution, in violation of the "legislative congress" clause, requiring people to not only write their legislative representative but also write briefs and letters to the court to have their opinion considered with no actual right to challenge what the court thinks? With nothing to defend the constitution from this?

(*): Aha!, I hear you say. McCulloch v. Maryland was unanimous by the supreme court. Why am I saying that this is a problem case?

McCulloch had three key points:
1. Decision: The Federal government has the right to run a bank; Maryland cannot tax it. Good.
2. Opinion, primary: The reason for this: The "Necessary and proper" clause is intended to expand the list of government powers, as it is in the list of what  the government can do. Fine.
3. Opinion, supporting reason: Because anything that the government wants to do that is consistent with the goals of the stated powers of congress must therefore be valid. Err ...

Number three is questionable.

Imagine a circle, with a point at the center. The point at the center is the constitution, with its ambiguities. The circle is all the things consistent with it.

Now take a second point, inside the circle, but near the edge. Draw another circle, smaller than the first, but going outside of the first circle. This is a court decision like McCulloch #3.

Finally, take a third point, inside this second circle, but outside the original circle of the constitution. This is the problem -- "We shall rule consistently with previous court decisions", not "We shall rule consistently with the constitution". We've drifted, by bad case after bad case, outside of the constitution.

In other words, the real issue here is not McCulloch itself, but the decisions that came after it, building on it, citing the Supreme Court's supporting opinion as the basis for their claim. In the same manner, Citizens United isn't the problem (the FEC's regulations were a disaster, and deserved to be struck down), but the implications of the opinions, and the complete failure of logic in the reasoning (i.e., the FEC cannot regulate it at all.)

A quick example, from Wikipedia: Wickard v. Filburn, 317 U.S. 111 (1942). "The Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price controls and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption.[8]". (Retrieved 08/20/2011). In other words, all actions ever taken by anyone, because it affects actions by others, and those actions are interstate in nature, are subject to federal regulation. Is that an unfair interpretation of the court ruling? No, it seems to be the interpretation that the courts use. One step, followed by another, following in the step of prior court rulings, without ever asking if we have left the sanity of the constitution.

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