What exactly do you think the supreme court’s job even is? You seem to have it exactly backwards. The framers spent enormous amounts of time and ink creating this system of separation of powers. Obviously it’s the job of the Supreme Court to police that. Much more so than finding new “rights” in emanations from penumbras.
I think it's farcical that this Court will hold the other branches to the strictly enumerated powers granted by the Constitution and yet restrains itself in no similar manner. "Emanations and penumbras" are just a mid-century aristocratic articulation of the idea that if you exercise multiple protected rights simultaneously, it follows that the sum of that conduct would also be constitutionally protected. People may disagree with the verbiage, or the outcome, but it is in fact quite easy to understand.
The court respecting its proper role in our tripartite system of government is also an important Constitutional concern. The framers gave primacy to the President and Congress when it came to issues of national security and defense.[1] It's not even clear the framers intended for the government's national security activities to be subject to any form of judicial review, much less that they intended the courts to be empowered to enjoin such activities before even deciding their Constitutionality.
[1] With good reason. The U.S. at the time of the founding was a fledgling country, threatened by European powers as well as domestic insurrection. There was great concern that a government with three branches would not be able to cooperate to respond effectively to foreign and domestic threats.
The Court isn’t holding Congress to “strictly enumerated powers.” The constitution doesn’t say anything about the federal government being able to enact environmental legislation, but the Supreme Court has widely interpreted the Commerce Clause to allow it.
The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.
And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.
The Supreme Court is mostly fixing its own precedents which are clearly wrong. You have to huff the glue off a bunch of law review book bindings to think that the framers went to all this trouble to create a tripartite government of distinct powers, but that they permitted Congress to create executive agencies that exercise the power of all three branches at once. The fact that we even pretend that’s constitutional is merely the result of the last time the President threatened to pack the Court to achieve political ends. (And no, the power to set the size of the Supreme Court is not meant to be used to “threaten” it to decide cases in particular ways. That’s an insane interpretation of that provision.)
I think you've helped me identify the crux of the problem: "The Supreme Court" is not doing its job of protecting the Constitutional rights of persons in the US with the vigor necessary to counter (check) the Legislative and Executive branches.
Checks and balances, not sharing of responsibility. The Supreme Court exists to protect Americans from unjust laws, not to write laws that congress should be writing.
Do you understand the difference between the constitution and the courts? The court does not invent rights, nor should it. It is the federal government’s responsibility to codify rights, and it is the courts responsibility to affirm them.
Separate but equal was precedent for a long time as well, would you be arguing the same for that?
I don't believe that the framers were supermen, but I also don't know that it's the Supreme Court that's meant to overturn the fundamental decisions the founders made.
The Supreme Court makes and unmakes new laws all the time, and I wish people would stop pretending they didn't. Separation of powers only really exists on paper in the US - in practice, any separation between powers only exists between political parties, and even their mutual hostility is mostly for show.
Independent of whether this is a good decision, I thought that the Supreme Court's mandate was to decide whether a law violates the Constitution and little more. Doesn't this sort of judicial activism weaken the separation of powers, or is there a legitimate argument to be made that this law violated a constitutional right of gay couples? If there is, it doesn't seem that the court quotes it.
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”
Any particular law does not exist in a vacuum. It exists within the context of firstly the constitution, and secondly all other statutes and previous court decisions.
Supreme Court justices have the authority to determine the constitutionality of a law, and they have the authority to determine how a law should be interpreted in a given case (with essentially unlimited discretion for applying their own judicial ideology).
However, they have no authority whatsoever to determine the social merit of a law. The legislature has the sole authority to legislate, and the constitution prohibits either of the other branches from usurping that power. It is far beyond the jurisdiction of the Supreme Court to determine the merit of a law in any way other than its constitutionality.
Anybody who expects the Supreme Court to act as a safe guard against otherwise constitutional law, that they simply don’t like, is undermining the separation of powers detailed in the constitution, and will be sorely surprised when they find out that’s not what the Supreme Court does.
I always find it weird when people make statements like yours, full of confidence that what they are saying is the way everything is and should be, when they are literally completely and utterly wrong. What you have is an opinion of how you think the government should be run, based on your interpretation of the constitution. The reality is that the Supreme Court thinks your interpretation is wrong, and since they're the deciding factor that means your interpretation is wrong.
The Supreme Court is part of the government — you mean the executive? Of course that could be a situation, that’s ostensibly why the founders separated the 3 branches, including giving SCOTUS life terms to increase their independence.
The Supreme Court does not create laws. Congress does. The Supreme Court interprets those laws, making sure they do not violate the Constitution.
The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written.
Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal.
There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.
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