Comment by tptacek | Hacker News Reader

Comment by tptacek | Hacker News Reader

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I've enjoyed your comments in the past and am (surprisingly) enjoying the heck out of this particular argument between you and Antonio Salazar Cardozo.

But.

I think you have to question whether you're on sure footing when your argument requires you to relitigate Marbury vs. Madison.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

--- 8< ---

You can't look at the Constitution and declare that, for instance, Congress has no power to "regulate", as that isn't one of its enumerated powers. The authority to do that is vested with the Supreme Court. The track record of your underlying argument --- that Congress should keep its hands off X or Y or Z, because it has no enumerated power to tamper with it --- is not encouraging.

Great points! Also:

1) the Commerce Clause has broad, powerful language. It was interpreted in its broad sense only a few decades after the Constitution was ratified, both by the court and the first few Congresses.

2) the framers, at least many of them, did intend this broad reading. They intended to have a national government with broad power to regulate commerce, as a response to the articles of confederation. This "camp" won not only at the drafting stage, but in the few decades after as it was interpreted.

3) a reading of the First Amendment incompatible with other clauses of the constitution, and the common law incorporated by reference is purely non-sensical. The framers knew what patents and copyrights were-the first Copyright Act was passed in 1790.

SOPA is a stupid law, but in broad terms it's within the heart of Congress's enumated power: the power to regulate the interstate flow of property created directly pursuant to a constitutional provision.

Maybury v. Madison is one of the key examples for my position[1], as it is a ruling in which the Supreme Court usurped for itself the power to decide the constitutionality of laws. The constitution doesn't grant them that power.[2] So, no the constitution doesn't vest that authority with the supreme court. Unless I'm mistaken, all the constitution says is that the supreme court shall be the highest court in the land.

Regarding the track record of my argument, I will not disagree, it is not encouraging.

If it were encouraging, I might believe that a just government were possible.

Unfortunately the track record you point out only serves to confirm the theoretical argument that I've been slightly making, which could be:

tl;dr: Power corrupts, and the corrupt seek government power.

[1] It should also be noted that in this ruling ,the Supreme Court also rightly ruled that any law passed that was in violation of the constitution was null and void the moment it was passed, and it did not need the supreme court to rule as such for it to be null and void. Further, they are correct that when two "laws" are in conflict it is right for them to judge which one holds, their key error is in thinking that one of the laws they can decide to very rule is the constitution.

[2] I'm open to quotes from the constitution itself, or the framers that disagree with this perspective, but I'm not likely to debate it much further.

At the end of the day, most people have this perception that the supreme court is "naturally" or "rightfully" the decider of whether things are constitutional or not, and my opponent above seems to think that the documents meaning can change over time. I can't dissuade people of that belief... but I can only point out that if that is the case, the inevitable result is eventually tyranny. -----

Consider this. How can any law, morally, that is not enumerated in the constitution as a power granted to the federal government, even if passed by the congress unanimously, signed by the president, and upheld by the supreme court as "constitutional"-- be legitimate?

The very existence of these institutions is created by the constitution.

They must rely on the constitution to claim any legitimacy at all.

Thus it matters not, logically, even if all three of them agree to do something, if that something is not authorized by the constitution, its not authorized at all.

I know this is essentially irrelevant because all three have simply chosen to ignore the constitution for the most part.

I just want to address the theoretical argument that the supreme court, or any of the other branches, or all three together, can decide to ignore the constitution and have any legitimacy.

You understand of course that it's awfully hard to have a discussion about Constitutional Law with someone who rejects most of its concepts from first principles. You, for instance, seem to literally reject outright the concept of judicial review, despite the fact that judicial review is a process that was established during the time of the founding fathers, indeed in a dispute between Adams and Jefferson.

I respect your strong feelings on this matter, but you aren't arguing from US jurisprudence at all.

Now, that's quite unfair. Why did you go from arguing the point to characterizing me? It is false to claim I reject judicial review, I have never done so, and courts reviewing laws is one of the legitimate powers granted to them. Are you unable to distinguish between courts holding laws to be in conflict or unconstitutional, and courts deciding that the constitution is subservient to their opinion? In one they are taking the powers granted to them and exercising them, in the other, they are deciding that they are the supreme power, a clear usurpation. Even if you have trouble making this distinction yourself, or disagree with my perspective, it must be obvious that I do, and thus the characterization is quite unfair.

It's also unfair to say I'm not "arguing from US jurisprudence at all", because essentially you're saying "I'm not arguing without already conceding that the constitution is meaningless.", only you're putting it in terms that imply I'm being unreasonable.

Actually, I'll take that as concession of my points in full.

The constitution says what it says. IF you don't like it, or the government doesn't like it, it has provisions for how to amend it.

Ignoring it is something they cannot do, because when they do that, they lose authorization under it.

This is quite logical, and I think irrefutable.

Anyway, I understand your general line of attack, I don't find it compelling and feel that I've already refuted it... and comments on HN often go off into the weeds so, I'm done.

Good day!

Just to be clear: you reject the concept of judicial review, and believe Marbury v Madison is a "usurpation".

Marbury v Madison didn't come out of left field. Hamilton presaged it in the Federalist Papers, explaining not only that the judiciary under our constitution is responsible for "interpreting" the law (his words), but that the gravity of that responsibility is one of the reasons they have permanent tenure, to keep them independent of the legislature.

Hamilton envisioned a government in which conflicts between the "people" (e.g. the Constitution) and the courts would be resolved simply by amending the Constitution. As could just as easily be done to, for instance, end all regulation and (one supposes) the 2-centuries-old concept of judicial review.

I understand what you're saying and agree that there's insufficient compatibility between our worldviews to productively argue about the Constitutionality of laws arising from conflicts between the explicitly enumerated concerns in the Constitution (here: the enumerated power of Congress to secure copyright, and the First Amendment).

Out of curiosity, by what process, in your view, is it supposed to be concluded whether a law passed is in violation of the constitution? You seem to reject the idea that this decision can be arbitrated at all. Is everyone just supposed to agree on this because it's obvious?

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