(09-29-2018 05:03 PM)RiceLad15 Wrote: (09-29-2018 04:53 PM)georgewebb Wrote: (09-29-2018 04:37 PM)RiceLad15 Wrote: And George, I really don’t appreciate you suggesting that I agree with Hitler - that’s a really disgusting take and beneath you.
Well you're not supposed to appreciate it, but it seems like an accurate take. You declared that unelected, unaccountable, but enlightened experts must take it upon themselves to "right" the "wrongs" which they discern, regardless of written law. So did those others. It's this philosophy that's beneath you -- beneath any civilized person.
Isn’t that the whole point of the Supreme Court? Evaluating written law and determining its constitutionality, and thus legality?
Just because a law is passed, does not mean it is right, or moral, or really anything. It just means it passed through Congress and was signed by the POTUS.
Correct. Most take Marbury v. Madison as the ability for the SCOTUS to render as to the Constitutionalilty of the resulting law. But even the ability of the SCOTUS as the arbiter of constitutionality can be an issue; there is nothing in the Constitution that inherently provides for this.
Quote:My take is that the Supreme Court has the ability to interpret the Constitution in the context of the real world in order to evaluate current laws under question.
That is certainly your right to believe in. It is my belief that such a Living Constitution theory is not just anathema to the idea of ordered justice, it is actually inherently unstable and an inherently dangerous philosophy to adopt based on the subject matter (i.e. the cornerstone of all law and legality in our system).
Quote:That’s why I asked you your opinion on rulings that limited free speech. Your principled stance would lead me to think you would disagree with both rulings.
When you read about Schenck, it is actually a cornerstone in many areas. The abse finding of the actual case (i.e. distributing pamphlets criticizing recruitment efforts being a criminal offense) I would vehemently disagree with.
But there are threads, discussed and relied upon even to this day, within Schenck that are agreeable.
And, to be honest, Schenck could be used a poster child for what I would view as the worst problems of a Living Constitution theory being followed -- literally within Schenck there is verbiage that says 'typically this law would be a problem within view of the First Amendment -- but this is wartime so everything changes.'
Brandenburg is actually one I very much agree with. The discussion of the base follows much of the reasoning of Schenck, but severely dials back the effect of Schenck while not abandoning it completely.
The base issue in Brandenburg is some cracker who distributed some pretty rank racial characterizations. The takeaway base finding is that mere advocacy for position cannot be criminalized. And that is a position (both legal and political) that I am strongly in favor of.