Alex_Wallenwein
New Member
Ever since law school, I have been amazed at how far Supreme Court opinions interpreting the Constitution sometimes get away from the actual text of the Constitution. This gets to the point where one must doubt if Supreme Court Justices can still read.
I have a theory about this, and I would like to bounce it off the legal experts here to see if I can get someone to disagree. I'd like to state this as an (apparently incongruous) syllogism to make it easier to argue with:
1. Lawyers must try to win their cases.
2. Supreme Court Justices are lawyers.
3. Therefore Supreme Court Justices can't read.
Without more, this obviously doesn't make sense, but here is my point:
A lawyer's primary obligation is to his client - within the bounds of the law and the integrity of the legal system, of course. That means as long as a lawyer has a colorable argument based on the facts and the law, he has quite some leeway to make his argument.
Now "the law" that lawyers primarily work with when arguing about a particular clause of the Constitution or of the Bill of Rights is Supreme Court case law. This means that, in order to win their client's cases (if the cases touch upon a constitutional issue) they must rely on what the Court held in the past, not on what the Constitution actually says.
By the time a Justice gets appointed to the Court, he has spent a good part of his professional life looking at opinions about the Constitution, rather than the Constitution itself. In our case-based common law system of jurisprudence, he is also to a large extent bound by prior decisions in his deliberations about what the Constitution means.
That means that, in making his decision, he is actually precluded from relying on the words of the Constitution itself when making his decisions about what it states.
Establishment Clause litigation serves as an example.
The freedom of religion portion of the first amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
To anyone who can read, this means that Congress can't force religion - or any religion - onto anyone, and it can't keep people from freely exercising it.
Since the sixties, the Court has come to the conclusion that a public school or a court that chooses to post the Ten Commandments on public property somehow "establishes" a public religion thereby, and that this violates the establishment clause.
The first word the Court apparently can't decipher is the word "Congress." Under our federal system, the federal government is denied the right to interfere with the religious preferences of the people in the states. This leaves states and the people in them free to do what they want concerning religion.
But the fourteenth amendment was ruled to apply 'selected' portions of the Bill of Rights to the states, and somehow the establishment clause was 'selected' as one of those portions that now ostensibly apply to the states. So now the people in the states are no longer free to decide what they want their state governments to do or refrain from doing.
Next, the meaning of "shall make no law" appears to have become a source of confusion for the Court. The phrase "make ... law" is present here. A public display of a religious symbol is not the "making" of a "law." But that didn't deter the Court from ruling that it is.
Also, the words "respecting an establishment of religion" would mean that (a state governmental entity) cannot establish a religion - but it also cannot 'un-establish' an already established one.
Since Christianity was not established by Congress of any other governmental entity as an existing religion, but by We the People, long before there was a federal government, a court cannot interfere with their desires to establish or to continue the observance of any religion.
Governments in America are not divorced from the people that run them and that elect officials to help them run them. If the people decide they want - or at least don;t mind - religious symbols on public property, who is the Court to interfere with that decision? After all, the Constitution limits government in its exercise of the power it derives from the people - not the People who gave it that power.
A minority who claims to be "offended" by the presence of religious symbols on public property ought not to be able to use the federal courts to un-establish an already - and very properly - established religion. It is government that is prohibited from establishing a religion, not the people.
The first amendment clearly states that 'Congress' (i.e.., any government entity under 14th amendment interpretations) is not allowed to make any law respecting an establishment of religion. That means government can't establish any religion, and it can't remove one from the public sphere, either. If it does, government violates the free exercise clause. That should be rather obvious, but apparently it is not - at least to SCOTUS judges.
Because the Court is made up of judges who are trained lawyers, and because lawyers look at case law in their efforts to construe written law (statutes and constitutions) the court looks at its own precedent and gives it more weight than the clear language of the Constitution itself.
Therefore, because (Supreme Court) judges are lawyers and lawyers rely on case law to win their arguments rather than the law (Constitution) itself, judges can't read.
Something ought to be done about that.
I have a theory about this, and I would like to bounce it off the legal experts here to see if I can get someone to disagree. I'd like to state this as an (apparently incongruous) syllogism to make it easier to argue with:
1. Lawyers must try to win their cases.
2. Supreme Court Justices are lawyers.
3. Therefore Supreme Court Justices can't read.
Without more, this obviously doesn't make sense, but here is my point:
A lawyer's primary obligation is to his client - within the bounds of the law and the integrity of the legal system, of course. That means as long as a lawyer has a colorable argument based on the facts and the law, he has quite some leeway to make his argument.
Now "the law" that lawyers primarily work with when arguing about a particular clause of the Constitution or of the Bill of Rights is Supreme Court case law. This means that, in order to win their client's cases (if the cases touch upon a constitutional issue) they must rely on what the Court held in the past, not on what the Constitution actually says.
By the time a Justice gets appointed to the Court, he has spent a good part of his professional life looking at opinions about the Constitution, rather than the Constitution itself. In our case-based common law system of jurisprudence, he is also to a large extent bound by prior decisions in his deliberations about what the Constitution means.
That means that, in making his decision, he is actually precluded from relying on the words of the Constitution itself when making his decisions about what it states.
Establishment Clause litigation serves as an example.
The freedom of religion portion of the first amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
To anyone who can read, this means that Congress can't force religion - or any religion - onto anyone, and it can't keep people from freely exercising it.
Since the sixties, the Court has come to the conclusion that a public school or a court that chooses to post the Ten Commandments on public property somehow "establishes" a public religion thereby, and that this violates the establishment clause.
The first word the Court apparently can't decipher is the word "Congress." Under our federal system, the federal government is denied the right to interfere with the religious preferences of the people in the states. This leaves states and the people in them free to do what they want concerning religion.
But the fourteenth amendment was ruled to apply 'selected' portions of the Bill of Rights to the states, and somehow the establishment clause was 'selected' as one of those portions that now ostensibly apply to the states. So now the people in the states are no longer free to decide what they want their state governments to do or refrain from doing.
Next, the meaning of "shall make no law" appears to have become a source of confusion for the Court. The phrase "make ... law" is present here. A public display of a religious symbol is not the "making" of a "law." But that didn't deter the Court from ruling that it is.
Also, the words "respecting an establishment of religion" would mean that (a state governmental entity) cannot establish a religion - but it also cannot 'un-establish' an already established one.
Since Christianity was not established by Congress of any other governmental entity as an existing religion, but by We the People, long before there was a federal government, a court cannot interfere with their desires to establish or to continue the observance of any religion.
Governments in America are not divorced from the people that run them and that elect officials to help them run them. If the people decide they want - or at least don;t mind - religious symbols on public property, who is the Court to interfere with that decision? After all, the Constitution limits government in its exercise of the power it derives from the people - not the People who gave it that power.
A minority who claims to be "offended" by the presence of religious symbols on public property ought not to be able to use the federal courts to un-establish an already - and very properly - established religion. It is government that is prohibited from establishing a religion, not the people.
The first amendment clearly states that 'Congress' (i.e.., any government entity under 14th amendment interpretations) is not allowed to make any law respecting an establishment of religion. That means government can't establish any religion, and it can't remove one from the public sphere, either. If it does, government violates the free exercise clause. That should be rather obvious, but apparently it is not - at least to SCOTUS judges.
Because the Court is made up of judges who are trained lawyers, and because lawyers look at case law in their efforts to construe written law (statutes and constitutions) the court looks at its own precedent and gives it more weight than the clear language of the Constitution itself.
Therefore, because (Supreme Court) judges are lawyers and lawyers rely on case law to win their arguments rather than the law (Constitution) itself, judges can't read.
Something ought to be done about that.