Texas Gov. Greg Abbott calls for Convention of States

[Ibanez]

Ivytalk is stomping JSO into the ground.

[SDHornet]

Ivytalk is stomping JSO into the ground.

This....and we have a cumulative chance of winning the powerball on wednesday than there is of a states convention happening.

[kalm]

This has a slightly less than zero percent chance of happening -- and for that we should be grateful.

Agree that it's truly unlikely, but why should we be grateful? The bar for passing any amendment via a convention is still really damn high.

I think we're long overdue for one (and you get one guess at the scope of my amendment )

Congress is dysfunctional, "We the people" are no longer it's constituency, and a vast majority of Americans agree (check out the polling).

This is exactly what article v was intended for.

[UNI88]

The short version of what I think JSO is getting at by saying the judges control the Constitution is that the Constitution says and means what the judges say it says it means, and that is the problem.

Versus what JSO thinks it says and means?

The reality that both conservatives and liberals get upset with the current court's rulings is a pretty good indicator that they're doing things the right way.

[JohnStOnge]

John: Your whole beef is summed up in one sentence: "I know how I feel when the Court does something I don't like with respect to Constitutionality and nothing can be done about it." That's precisely what Hamilton dealt with in Federalist 78 (which you should read, by the way) when he viewed the judiciary as a check on the political branches of government, which are subject to the whims of the people. Hamilton also said there what most of us learned in ninth grade civics class: that the judiciary interprets the laws, that federal judges should have life tenure to insulate them from public political " caprice,"and that the Constitution is supreme.

I have read Federalist 78 a number of times. It also has this:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Do you think that what is going on now and has been going on for the last 100 years is consistent with that? It would be nice if no "will" were reflected. But it clearly is on a routine basis.

And no it's not any particular case. This is my general outlook: The whole point of a Constitution is to establish a set of principles and procedures that can't readily be changed without overwhelming social consensus. If we depart from a system whereby judges limit themselves to an honest effort to do nothing else but proceed as best they honestly can by trying to stick to original understanding, the whole point of having a Constitution is lost. When they don't do that, we have an oligarchy. We effectively have rule by an unelected council of 9 life term officials who are not accountable for their official actions.

As a citizen I have absolutely NO doubt that I want Judges to stick strictly to the original understanding and feel that if we don't have that we are governed by Judges rather than by the Constitution. And I think it's obvious that I'm right about that. I think if you wish you can argue that it's better to be governed by Judges rather than by the Constitution. But you can't be intellectually honest and deny that that's what's happening.

[JohnStOnge]

Ivytalk is stomping JSO into the ground.

No he's not. If you've been paying attention you know that he has basically conceded that the Judges do not proceed according to the original understanding of the Constitution. Now the argument is over whether or not that is a good thing. And I think that it is not. Not if you believe in Government by the People.

[JohnStOnge]

Here's one for you guys if you don't think we're governed by Judges rather than by the Constitution.

Here is an important Separation of Church and State case:

https://www.law.cornell.edu/supremecourt/text/374/203" onclick="window.open(this.href);return false;

Here is the crux:

no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day

Now, quote me the Constitutional language that says that. The idea is that the 14th Amendment makes the establishment clause apply to the States. So you can quote the establishment clause. We know that's the first part. But now quote language from the 14th Amendment so that you have two bits of language that I can look at and say, "By golly, yep! That clearly means a school board can't require that."

If you make the attempt we can go from there.

[JohnStOnge]

I also want to point out a citation in that decision at https://www.law.cornell.edu/supremecourt/text/374/203" onclick="window.open(this.href);return false;. Here it is:

Id. at 23-24. Moreover, all of the four dissenters, speaking through Mr. Justice Rutledge, agreed that

Our constitutional policy . . . does not deny the value or the necessity for religious training, teaching or observance. Rather, it secures their free exercise. But, to that end, it does deny that the state can undertake or sustain them in any form or degree. For this [p219] reason, the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection, and, as the state cannot forbid, neither can it perform or aid in performing, the religious function. The dual prohibition makes that function altogether private.

Id. at 52.

Underline added for emphasis.

Really? Is that why the guys in Congress who were around when the First Amendment was ratified appropriated funds to hire a Christian Chaplain and held Christian Church services in the House Chamber? that wasn't aiding in performing the religious function? Do you think maybe they didn't understand the intent of the Amendment that was just ratified a few years before they built the new House Chamber they were holding the Christian Church services in? Thomas Jefferson was fine with it, by the way.

You guys need to quit looking at this thing as though you can trust these people to be intellectually honest. It's obvious that they're not. They're deciding, in way too many instances, that THEY think things should be done THIS way and going through all kinds of mental gymnastics to reach the "intepretations" that'll accomplish that. Do you really doubt that?

You don't have to be a lawyer to see the truth. You have to be a lawyer to be able to research case law. But case law is crap piled upon crap. Look directly at the Constitution and what was going on at the time and you will see that they are NOT following the Constitution according to this paradigm described by Robert Bork in his book, The Tempting of America,:

What does it mean to say that a judge is bound by the law? It means that he is bound by the only thing that can be called law, the principles of the text, whether Constitution or Statute, as generally understood at the enactment.

And frankly I don't think they're even pretending that they are doing that. I think that if you REALLY press them they will say that Constitutional revisionism is necessary and good. And I am confident that Ivy knows they are not. I will wait for him to start his argument as to why it should be that way.

[JohnStOnge]

Let me say that I do not think those who ratified the original Constitution intended for the Judiciary to have the kind of power and impact it has over the society. But I also say that if they did, we can now clearly see that it was a mistake. They do not stick to the Constitution and it's become an element of oligarchy. As a matter of principle, you can't allow people to have great power without also making them accountable for their official actions.

And even if you like the effects of what they've done, arguing for the level of power the Judiciary has now because you like the net effect is like arguing for monarchy as a system of government because you like what the king's done.

It's unbelievable to me that there is ANYBODY who can't immediately see that you can't give people power without making sure that they are accountable for their official actions. That is insane. But for some reason if you put somebody in a Black robe and spout enough mumbo jumbo people buy it when it comes to the Federal Judiciary.

[Ivytalk]

Ivytalk is stomping JSO into the ground.

No he's not. If you've been paying attention you know that he has basically conceded that the Judges do not proceed according to the original understanding of the Constitution. Now the argument is over whether or not that is a good thing. And I think that it is not. Not if you believe in Government by the People.

In order to prevail on a motion for reargument, a litigant must show that the trial court has either overlooked a material fact or misapplied a legal principle in such a way as to have changed the outcome. Merely repackaging the arguments contained in his briefs will not suffice. In this instance, defendant StOnge has only done the latter. He has emphasized the aspirational goal of having Justices that adhere to principles of Constitutional originalism, but he sets up the "straw man" argument of "accountability" of a non-political branch of government to "the people" without acknowledging that the sole way of achieving that goal is via the ballot box: elect like-minded members of the Executive and Legislative branches who will appoint and confirm originalist judges. Merely possessing a different view of constitutional interpretation is not an impeachable offense under the Constitution. Not even Judge Bork believed that. See also S. Breyer, Active Liberty. The motion for reargument is denied. Again. IT IS SO ORDERED. Ivytalk, C.J.

[JoltinJoe]

I agree with JSO that originalism is the most important part of constitutional law, and that justices of the Supreme Court MUST consider the text of the constitution, and how it was historically understood and applied, by the Court, in resolving cases before them.

However, the reason we appoint justices to the court is that "text and tradition" alone is not enough to answer all constitutional questions we face in world 225 years removed from the founders. Justices must further consider whether the historical application of the text creates an injustice of constitutional significance in 21st century America -- or, in nutshell, does this prior application still make sense?

I don't like it when amorphous rights are added to the constitution, like the "right to privacy," and agree with JSO that the justices who did that exceeded their appropriate authority. But, the remedy for incorrect Supreme Court decisions is for future courts to overrule them (much like what has happened to Roe, which is but a shell of the original holding today).

Ivy is correct that, if you want justices who will more narrowly view their authority to assess "text and tradition" in view of modern circumstances, then elect lawmakers who will vote for the appointment of those judges.

But the justices of the Supreme Court must consider the ramifications of "text and tradition" as applied in the modern world, and prior understandings must be modified to accommodate modern realities and to accomplish justice in a world that is much different 225 years removed from the founders.

We should not rely, exclusively, on the understandings of men who lived over two centuries ago to be our sole criterion for understanding how our constitution is applied today -- and our founders would likely think so too.

[Ibanez]

John: Your whole beef is summed up in one sentence: "I know how I feel when the Court does something I don't like with respect to Constitutionality and nothing can be done about it." That's precisely what Hamilton dealt with in Federalist 78 (which you should read, by the way) when he viewed the judiciary as a check on the political branches of government, which are subject to the whims of the people. Hamilton also said there what most of us learned in ninth grade civics class: that the judiciary interprets the laws, that federal judges should have life tenure to insulate them from public political " caprice,"and that the Constitution is supreme.

I have read Federalist 78 a number of times. It also has this:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Do you think that what is going on now and has been going on for the last 100 years is consistent with that? It would be nice if no "will" were reflected. But it clearly is on a routine basis.

And no it's not any particular case. This is my general outlook: The whole point of a Constitution is to establish a set of principles and procedures that can't readily be changed without overwhelming social consensus. If we depart from a system whereby judges limit themselves to an honest effort to do nothing else but proceed as best they honestly can by trying to stick to original understanding, the whole point of having a Constitution is lost. When they don't do that, we have an oligarchy. We effectively have rule by an unelected council of 9 life term officials who are not accountable for their official actions.

As a citizen I have absolutely NO doubt that I want Judges to stick strictly to the original understanding and feel that if we don't have that we are governed by Judges rather than by the Constitution. And I think it's obvious that I'm right about that. I think if you wish you can argue that it's better to be governed by Judges rather than by the Constitution. But you can't be intellectually honest and deny that that's what's happening.

John, times change. We can't use a document from the 1700's for some things that weren't a concern (or priority) then. We've had amendments to fix (and create) problems, but I don't believe that you can sit in a court in 2016, 2026 or even 1950 and go purely off the original intent. You'd get nowhere. We have to evolve with it but use it as a base. It's our founding principles, but our society has evolved. Our understanding of it has to jive with the present day and we have to make sure that we're still operating within the framework that has been set up.

[Ibanez]

I agree with JSO that originalism is the most important part of constitutional law, and that justices of the Supreme Court MUST consider the text of the constitution, and how it was historically understood and applied, by the Court, in resolving cases before them.

However, the reason we appoint justices to the court is that "text and tradition" alone is not enough to answer all constitutional questions we face in world 225 years removed from the founders. Justices must further consider whether the historical application of the text create an injustice of constitutional significance in 21st century America -- or, in nutshell, does this prior application still make sense?

I don't like it when amorphous rights are added to the constitution, like the "right to privacy," and agree with JSO that the justices who did that exceeded their appropriate authority. But, the remedy for incorrect Supreme Court decisions is for future courts to overrule them (much like what has happened to Roe, which is but a shell of the original holding today).

Ivy is correct that, if you want justices who will more narrowly view their authority to assess "text and tradition" in view of modern circumstances, then elect lawmakers who will vote for the appointment of those judges.

But the justices of the Supreme Court must consider the ramifications of "text and tradition" as applied in the modern world, and prior understandings must be modified to accommodate modern realities and to accomplish justice in a world that is much different 225 removed from the founders.

We should not rely, exclusively, on the understandings of men who lived over two centuries ago to be our sole criterion for understanding how our constitution is applied today -- and our founders would likely think so too.

[Ibanez]

Here's one for you guys if you don't think we're governed by Judges rather than by the Constitution.

Here is an important Separation of Church and State case:

https://www.law.cornell.edu/supremecourt/text/374/203" onclick="window.open(this.href);return false;

Here is the crux:

no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day

Now, quote me the Constitutional language that says that. The idea is that the 14th Amendment makes the establishment clause apply to the States. So you can quote the establishment clause. We know that's the first part. But now quote language from the 14th Amendment so that you have two bits of language that I can look at and say, "By golly, yep! That clearly means a school board can't require that."

If you make the attempt we can go from there.

From the 1st Amendment we know that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We also know that of the 13 Colonies, for the most part, were established by people seeking freedom for their religion and the religion dominated life in the colony. But by the mid 1700s, there much colonial support for separating church and state.

I didn't follow your link, but are you referring to Everson v. BoE in the late 1940s? I believe it was a case of taxation and money being used with Catholic schools.

Edit: Justice Black affirmation

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.

[bluehenbillk]

The only slam dunk to me is enacting a balanced budget.

Everything else seems to diminish the judicial branch. I'm not a big fan of that - especially the 7 justice super majority which seems the most ridiculous of the suggestions IMO.

[houndawg]

JSO out-bloviates two Ivy Leaguers while simultaneously taking them to school on the law.

You guys would be wondering what you got for your money if your parents hadn't paid for your under-education. Serious wood being laid to his fellow conks by JSO....

[JohnStOnge]

In order to prevail on a motion for reargument, a litigant must show that the trial court has either overlooked a material fact or misapplied a legal principle in such a way as to have changed the outcome. Merely repackaging the arguments contained in his briefs will not suffice. In this instance, defendant StOnge has only done the latter. He has emphasized the aspirational goal of having Justices that adhere to principles of Constitutional originalism, but he sets up the "straw man" argument of "accountability" of a non-political branch of government to "the people" without acknowledging that the sole way of achieving that goal is via the ballot box: elect like-minded members of the Executive and Legislative branches who will appoint and confirm originalist judges. Merely possessing a different view of constitutional interpretation is not an impeachable offense under the Constitution. Not even Judge Bork believed that. See also S. Breyer, Active Liberty. The motion for reargument is denied. Again. IT IS SO ORDERED. Ivytalk, C.J.

None of which contradicts anything I wrote. Besides, the thing of appointing "originalists" judges obviously doesn't work. And I don't think I need to elaborate.

[JohnStOnge]

From the 1st Amendment we know that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We also know that of the 13 Colonies, for the most part, were established by people seeking freedom for their religion and the religion dominated life in the colony. But by the mid 1700s, there much colonial support for separating church and state.

So are you arguing that the language saying that the Congress of the United States shall make no law respecting establishment of religion prohibits a local school board from requiring Bible reading? It just literally does not. Surely you can see that.

And when it comes to the Freedom of Religion thing, a number of States had official State Churches for decades after the First Amendment was ratified. They were clearly worried about avoiding the establishment of an official NATIONAL religion.

Now, the argument is that the 14th Amendment extended the Establishment Clause to State legislatures. So I would like for someone to quote the language that says THAT. And good luck. And again don't talk about Court decisions. Just quote me the language you think does that.

[JohnStOnge]

John, times change. We can't use a document from the 1700's for some things that weren't a concern (or priority) then. We've had amendments to fix (and create) problems, but I don't believe that you can sit in a court in 2016, 2026 or even 1950 and go purely off the original intent. You'd get nowhere. We have to evolve with it but use it as a base. It's our founding principles, but our society has evolved. Our understanding of it has to jive with the present day and we have to make sure that we're still operating within the framework that has been set up.

Here is the thing: There is a mechanism for adjusting to changing times in the Constitution. It's called the Amendment process. The Idea that the Judiciary HAS to depart from Original Understanding because times change is a bunch of crap. It's an excuse.

If there is really a need to change what the Constitution requires we can Amend the Constitution. And the good thing about that process is that it takes a strong consensus among the People to do so. What we're doing now is allowing unelected and unaccountable officials to effectively change the Constitution by virtue of a simple majority among 9 individuals. When you really stand back and think about that while also considering that there is indeed a mechanism for changing things through societal consensus, how can you POSSIBLY support that?

It just amazes me that anybody who believes in government by the People supports the role that has evolved for the Supreme Court. It really is government by oligarchy.

[Ivytalk]

JSO out-bloviates two Ivy Leaguers while simultaneously taking them to school on the law.

You guys would be wondering what you got for your money if your parents hadn't paid for your under-education. Serious wood being laid to his fellow conks by JSO....

Oh, piss off. Your John Deere needs an oil change. Gotta make that last mortgage payment on your personal dust bowl.

[Skjellyfetti]

There has been argument of the interpretation of the Constitution since its founding, JSO. It isn't something that was invented in the 1900s.

Our first President, along with Alexander Hamilton, argued that there are "implied powers" granted to the Federal government by the Constitution that are not expressly stated.... like the creation of a national bank.

In fact... anything not expressly forbidden by the Constitution could be allowed under "general welfare" or "necessary and proper." That's been argued since our first President was in office.

As I always tell you: the country you are always pining for is not the pre-Roosevelt US... but, the pre-Constitution US.

[JoltinJoe]

John, times change. We can't use a document from the 1700's for some things that weren't a concern (or priority) then. We've had amendments to fix (and create) problems, but I don't believe that you can sit in a court in 2016, 2026 or even 1950 and go purely off the original intent. You'd get nowhere. We have to evolve with it but use it as a base. It's our founding principles, but our society has evolved. Our understanding of it has to jive with the present day and we have to make sure that we're still operating within the framework that has been set up.

Here is the thing: There is a mechanism for adjusting to changing times in the Constitution. It's called the Amendment process. The Idea that the Judiciary HAS to depart from Original Understanding because times change is a bunch of crap. It's an excuse.

If there is really a need to change what the Constitution requires we can Amend the Constitution. And the good thing about that process is that it takes a strong consensus among the People to do so. What we're doing now is allowing unelected and unaccountable officials to effectively change the Constitution by virtue of a simple majority among 9 individuals. When you really stand back and think about that while also considering that there is indeed a mechanism for changing things through societal consensus, how can you POSSIBLY support that?

It just amazes me that anybody who believes in government by the People supports the role that has evolved for the Supreme Court. It really is government by oligarchy.

I agree with you, up to a point. For example, when the Griswold court held there was a general "right to privacy" protected by the constitution, it was effectively amending the constitution to create a "right" not in any way supported by the existing text.

However, don't you think there are times when the court has to grasp with existing text and how it was historically understood? For example, what about the equal protection language of the Fifth Amendment, later incorporated in the 14th amendment to prohibit equal protection violations by the states?

When the founders drafted the constitution, the equal protection clause certainly was not interpreted to provide equal protection to women, or to black slaves. Do you think our courts were powerless to expand the understanding of equal protection to conform with changing public morality and circumstances?

I do understand your concern about judges legislating from the bench. But that has happened since the first courts under the constitution, and there are some existing curbs in place to address at least the worst over-reaching. Some Abbott's proposals are a far worse "remedy" than the problem.

[kalm]

I hope JSO isn't a Ted Cruz supporter...

"People are entitled to their own opinions about what the definition ought to be," Tribe writes. "But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an 'originalist,' one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on U.S. soil to be a 'natural born' citizen. Even having two U.S. parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive."

Tribe later called Cruz a "fair-weather originalist" on CNN, saying the senator's philosophy is "antiquated...but it turns out Ted Cruz drops that when it doesn't serve his purpose."

Donald Trump, the front-runner for the Republican nomination, had been touting Tribe's scholarship on the question in the days leading up to the Harvard professor's op-ed. In response, Cruz called Tribe "a liberal left-wing judicial activist."

http://www.rawstory.com/2016/01/more-co ... president/" onclick="window.open(this.href);return false;

[Ivytalk]

I hope JSO isn't a Ted Cruz supporter...

"People are entitled to their own opinions about what the definition ought to be," Tribe writes. "But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an 'originalist,' one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on U.S. soil to be a 'natural born' citizen. Even having two U.S. parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive."

Tribe later called Cruz a "fair-weather originalist" on CNN, saying the senator's philosophy is "antiquated...but it turns out Ted Cruz drops that when it doesn't serve his purpose."

Donald Trump, the front-runner for the Republican nomination, had been touting Tribe's scholarship on the question in the days leading up to the Harvard professor's op-ed. In response, Cruz called Tribe "a liberal left-wing judicial activist."

http://www.rawstory.com/2016/01/more-co ... president/" onclick="window.open(this.href);return false;

I took Tribe's Con Law course and aced it, even though Larry is a "liberal left-wing judicial activist." He was an excellent teacher, by the way.

[JoltinJoe]

I hope JSO isn't a Ted Cruz supporter...



http://www.rawstory.com/2016/01/more-co ... president/" onclick="window.open(this.href);return false;

I took Tribe's Con Law course and aced it, even though Larry is a "liberal left-wing judicial activist." He was an excellent teacher, by the way.

I've seen Tribe speak and he is a great speaker/teacher. He would have made a great Supreme Court justice, but I think he poisoned his chances by taking such an active role in speaking out against Robert Bork. I think he'd be on the Court by now if he had not done that.

You know, in law school, I always found that in classes like Con Law and Constitutional Criminal Procedure, you can learn more from a professor that shares a viewpoint different than your own, because you have to work harder to defend your positions in class.