On Thu, Nov 21, 2013 at 7:51 PM, meekerdb <meeke...@verizon.net> wrote:
> On 11/21/2013 1:50 AM, Bruno Marchal wrote:
>
> On 20 Nov 2013, at 22:20, Richard Ruquist wrote:
>
> Chief Supreme Court Justice Marshall usurped the Constitution
> when he maintained that the Supreme Court had the right to rule
> laws made by Congress and signed by the President unconstitutional.
> As a result the USA is essentially ruled by the Supreme Court
>
>  There is no provision in the US Constitution for this right.
> Congress instead has the right to regulate the Supreme Court,
>
>
>
> The supreme court has judged the NDAA 2012 anti-constitutional. But
> apparently this has changed nothing. I don't find information on this. Some
> sites on this  have just disappeared.
>
>
> It changed nothing because it didn't happen.  First, the NDAA authorizes the
> defense budget and other things.  The Supremes would not have found it
> "anti-constitutional".  The controversial provision you may be thinking of
> was clause that affirmed the Presidents power to detain people without trial
> as set out in the 2001 resolution following the 9/11 attack.  The ACLU has
> challenged this provision and a case was brought in 2012, Hedge v Obama.  A
> district court ruled that the indefinite detention provision was
> unconstitutional and gave an injunction against its use.  This went up
> through the layers of appeals courts.  The Supreme Court threw out the
> injunction on the grounds that the plaintiffs lacked legal standing to bring
> the case - and so in effect upheld the law without actually ruling on
> whether or not it is constitutional.
>
> This is an aspect of U.S. law inherited from English law, that only persons
> who are actually harmed by a law can challenge it in court.  More modern
> democracies, seeing the importance of the U.S. Supreme Court in being able
> to nullify unconstitutional laws, have explicitly provided for court review
> of laws without there having to be a plaintiff and a case.

Brent,

I would say you're making an implicit extraordinary claim here. This
claim being that the reason why certain fundamental rights (like the
right to a trial) are not being is bureaucratic impediment, as opposed
to these impediments being created for the purpose of preventing the
application of said rights in practice.

I argue that this claim is extraordinary for the following reasons:

- The President signed the NDAA. He also swore to defend the
constitution and he's supposed to be a constitutional expert, so it is
not likely that he is not aware that citizens have a fundamental right
to a trial. He was not forced to sign the NDAA by bureaucracy (he
might have been forced in other ways, but here we get into pure
speculation). It was fully within his powers not to sign it or to
demand changes;

- Harm is a very subjective word. If the Supreme Court was interested
in upholding fundamental rights, it could easily interpret loss of
fundamental human rights as harm;

- The bureaucratic impediments seem to work mostly in a direction of
loss of freedom. Empirically, it does not look plausible that they are
just neutral attrition -- they prevent Guantanamo from being closed,
they allow for total surveillance, they allow the Federal Government
to go after marijuana businesses that were authorised by their states,
they allow for "free speech zones", they allow for random road check
points and so on;

- The constitution is the highest law. If people were serious about
following it, they couldn't possible let some lower level law get in
the way. It's a truism that anything that prevents the application of
constitutional principles is unconstitutional, and a lot of people in
the USA swore to defend the constitution.

Telmo.

> Brent
>
>
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