The Commission to Pack the Court is anything but

2,861 Views | 33 Replies | Last: 2 yr ago by BearForce2
wifeisafurd
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The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.
dajo9
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wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
American Vermin
dajo9
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Additionally, the Commission is irrelevant. The current Congress has no appetite for Court reform. If additional Democratic states are added to the Senate, giving the Senate some credibility with the American people again, and if Democrats in the House can avoid gerrymander armageddon in 2022, and create a Congress that is representative of the American people and with an appetite for Court reform, then Congress has the constitutional authority to do what it wants with the courts.

That is an unlikely scenario and even if it happened, this commission would be ancient history by then.
American Vermin
wifeisafurd
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dajo9 said:

Additionally, the Commission is irrelevant. The current Congress has no appetite for Court reform. If additional Democratic states are added to the Senate, giving the Senate some credibility with the American people again, and if Democrats in the House can avoid gerrymander armageddon in 2022, and create a Congress that is representative of the American people and with an appetite for Court reform, then Congress has the constitutional authority to do what it wants with the courts.

That is an unlikely scenario and even if it happened, this commission would be ancient history by then.
While the prior post is blather, this post is relevant. The Commission seems like a publicity stunt to pacify the left wing of the party, and to make enough noise to scare the Justices. The Justices will do what they will do anyway given the Courts independent nature, and if the voters are angry, the legislature could do what it will do to change the court system. That amounts to a partisan declaration of war that I'm not sure Biden is prepared to wage. There is nothing magical about the number 9. There is noting magical about life terms (term limits if fact would be a more sensible reform though require a constitutional amendment). Then again when FDR threatened to pack the Court, the pushback was significant. But is was the composition of the court with FDR's new Justices under natural attrition that saw a change in the Court's view of the New Deal. Time is on Biden's time assuming he is reelected.
BearlyCareAnymore
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dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
This statement does not make any legal sense. The Constitution has a hierarchy of powers. The preamble is not just words. It specifically sets out that the people give the power to the federal government, as opposed to the states doing so in the Articles of Confederation. "We the people of the United States...establish this Constitution". Therefore, every power the Constitution grants to Congress is subject to the overriding rights that the people are given. Further, certain rights are granted to the states. There is an interplay in all of these rights. Congress cannot abridge the rights of the others in exercising its authority.

I'll take, for instance, the Defense of Marriage Act, which was clearly unconstitutional on its face. Congress acted within their authority in passing that law. In so doing they violated the individual rights of same sex couples. They also clearly overstepped their authority in regulating what is a state matter - determining marriage laws, and they overstepped their authority in essentially trying to override the full faith and credit clause. Further, clearly for any federal benefit, like social security, Congress has the authority to pass eligibility requirements. That does not mean they could say that all federal benefits that go to a spouse will only go to a spouse of a heterosexual couple. Or a same race couple. But that is the result of what you are proposing.

The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop. So what you are saying either means nothing - the court can just say, yeah, sure dajo. we agree. and move on as it always has. Or it means everything, that if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.

The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them.

Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
wifeisafurd
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OaktownBear said:

dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress


Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
I could not agree more with this sentence. Legislatures seem to want to duck the tough issues or be sees as compromising to get something done these days. They want the courts to bail them out. Look no further than immigration which is constantly dumped on the courts to figure out executive action or inaction.
dajo9
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wifeisafurd said:

dajo9 said:

Additionally, the Commission is irrelevant. The current Congress has no appetite for Court reform. If additional Democratic states are added to the Senate, giving the Senate some credibility with the American people again, and if Democrats in the House can avoid gerrymander armageddon in 2022, and create a Congress that is representative of the American people and with an appetite for Court reform, then Congress has the constitutional authority to do what it wants with the courts.

That is an unlikely scenario and even if it happened, this commission would be ancient history by then.
While the prior post is blather, this post is relevant. The Commission seems like a publicity stunt to pacify the left wing of the party, and to make enough noise to scare the Justices. The Justices will do what they will do anyway given the Courts independent nature, and if the voters are angry, the legislature could do what it will do to change the court system. That amounts to a partisan declaration of war that I'm not sure Biden is prepared to wage. There is nothing magical about the number 9. There is noting magical about life terms (term limits if fact would be a more sensible reform though require a constitutional amendment). Then again when FDR threatened to pack the Court, the pushback was significant. But is was the composition of the court with FDR's new Justices under natural attrition that saw a change in the Court's view of the New Deal. Time is on Biden's time assuming he is reelected.
This post is blather as the Commission is irrelevant and the current Congress has no appetite for Court reform.
American Vermin
dajo9
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OaktownBear said:

dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
This statement does not make any legal sense. The Constitution has a hierarchy of powers. The preamble is not just words. It specifically sets out that the people give the power to the federal government, as opposed to the states doing so in the Articles of Confederation. "We the people of the United States...establish this Constitution". Therefore, every power the Constitution grants to Congress is subject to the overriding rights that the people are given. Further, certain rights are granted to the states. There is an interplay in all of these rights. Congress cannot abridge the rights of the others in exercising its authority.

I'll take, for instance, the Defense of Marriage Act, which was clearly unconstitutional on its face. Congress acted within their authority in passing that law. In so doing they violated the individual rights of same sex couples. They also clearly overstepped their authority in regulating what is a state matter - determining marriage laws, and they overstepped their authority in essentially trying to override the full faith and credit clause. Further, clearly for any federal benefit, like social security, Congress has the authority to pass eligibility requirements. That does not mean they could say that all federal benefits that go to a spouse will only go to a spouse of a heterosexual couple. Or a same race couple. But that is the result of what you are proposing.

The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop. So what you are saying either means nothing - the court can just say, yeah, sure dajo. we agree. and move on as it always has. Or it means everything, that if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.

The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them.

Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
I know we have spent our lives in a bubble of reverence for the Constitution. Throughout our lives the only people that speak about the Constitution are historians and lawyers and they are unanimous in their reverence for the genius of the Constitution. I get it. I used to be in that bubble.

But people, particularly young people, are rising up to the realization that the Constitution was specifically written to keep people that look like them from obtaining their fair share of power and rights in this country. When actual people start sounding off on the Constitution your preferred bubble of reverence is going to pop.

So I am a little less interested in precedent and common historical readings of the Constitution than you are. Here is what I read. Article 3, Section 1:
Quote:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article 3, Section 2:
Quote:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is clearly in the driver's seat here. Anyone smart enough to have never taken a law class can easily see that. So, in the future, sometime after Biden's Presidency, when the American people are demanding an end to the tyranny of the minority placed upon us by the Supreme Court, the Senate, the Electoral College, and the Constitution itself, the American people will demand from their popularly elected President and Congress that they use these kinds of tools in the Constitution to finally give power to the people. It only takes willpower. Lawyers need not apply.

The American people aren't going to be subject to the tyrannical rule of the Courts.

American Vermin
Anarchistbear
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A 35 person commission which will not issue recommendations- in others words a dead letter box
BearlyCareAnymore
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dajo9 said:

OaktownBear said:

dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
This statement does not make any legal sense. The Constitution has a hierarchy of powers. The preamble is not just words. It specifically sets out that the people give the power to the federal government, as opposed to the states doing so in the Articles of Confederation. "We the people of the United States...establish this Constitution". Therefore, every power the Constitution grants to Congress is subject to the overriding rights that the people are given. Further, certain rights are granted to the states. There is an interplay in all of these rights. Congress cannot abridge the rights of the others in exercising its authority.

I'll take, for instance, the Defense of Marriage Act, which was clearly unconstitutional on its face. Congress acted within their authority in passing that law. In so doing they violated the individual rights of same sex couples. They also clearly overstepped their authority in regulating what is a state matter - determining marriage laws, and they overstepped their authority in essentially trying to override the full faith and credit clause. Further, clearly for any federal benefit, like social security, Congress has the authority to pass eligibility requirements. That does not mean they could say that all federal benefits that go to a spouse will only go to a spouse of a heterosexual couple. Or a same race couple. But that is the result of what you are proposing.

The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop. So what you are saying either means nothing - the court can just say, yeah, sure dajo. we agree. and move on as it always has. Or it means everything, that if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.

The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them.

Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
I know we have spent our lives in a bubble of reverence for the Constitution. Throughout our lives the only people that speak about the Constitution are historians and lawyers and they are unanimous in their reverence for the genius of the Constitution. I get it. I used to be in that bubble.

But people, particularly young people, are rising up to the realization that the Constitution was specifically written to keep people that look like them from obtaining their fair share of power and rights in this country. When actual people start sounding off on the Constitution your preferred bubble of reverence is going to pop.

So I am a little less interested in precedent and common historical readings of the Constitution than you are. Here is what I read. Article 3, Section 1:
Quote:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article 3, Section 2:
Quote:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is clearly in the driver's seat here. Anyone smart enough to have never taken a law class can easily see that. So, in the future, sometime after Biden's Presidency, when the American people are demanding an end to the tyranny of the minority placed upon us by the Supreme Court, the Senate, the Electoral College, and the Constitution itself, the American people will demand from their popularly elected President and Congress that they use these kinds of tools in the Constitution to finally give power to the people. It only takes willpower. Lawyers need not apply.

The American people aren't going to be subject to the tyrannical rule of the Courts.




Your position is like telling people not to use condoms because you think they cause pregnancy 2% of the time instead of realizing it prevents pregnancy 98% of the time. I'm sorry, it is brain dead ignorant. RWNJ's would love you because once you got what you wanted they'd have you dead, in jail, or cowering silently behind closed doors within 5 years.

The court is simply rarely in position to do harm. Procedurally it either stops the harm done by other branches or it doesn't, I don't think you can name ten things the court has done that stopped progress. I'm not expressing reverence for the Constitution- the Senate and electoral college are anachronistic and undemocratic. I'm realistic about history

Legislatures have tried to take away your rights 1000's of times and the courts have stopped them. By definition the court cannot take away your rights unless another branch wants to do it.

Interracial marriage, abortion, birth control, Miranda rights, not being arrested for what you say, same sex marriage, school desegregation, police not searching you at will, all brought to you by the court.
dajo9
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I'm not against the Court. It is the key branch in defense of minority rights, as you note.

I am against THIS court, which has been given to us by a series of Presidents and Senates who were not chosen by the American people and foisted upon us against the will of the American people. The Constitution clearly allows the American people to remedy that situation through their elected representatives. This Court has no legitimacy and needs cleaning up.
American Vermin
Go!Bears
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OaktownBear said:


The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop.
I will take on your opus in pieces. There are several problems I see...

What you wrote is a tautology. The Constitution means what the Supreme Court says it means. The Supreme Court never does anything unconstitutional, only the other bodies do. I agree with dajo that it should not be so. We are with Jefferson in response to Marshall's judicial coup. Just because it is, does not mean it should be. The Court's powers should be constrained. In no other Liberal democratic system does an unelected and nearly unlimited body have such power. And it is nowhere near as benign as you imagine.
Go!Bears
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OaktownBear said:

if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.
So we would then be like the UK which has managed quite nicely with this arrangement.

"But, the Congress might do something awful! Who will stop them?"

The electorate will. That is how it works in a democracy. You have to trust your fellow citizens, and it is not like there are not other checks within the system to eliminate the worst imaginable transgressions.
BearlyCareAnymore
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Go!Bears said:

OaktownBear said:

if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.
So we would then be like the UK which has managed quite nicely with this arrangement.

"But, the Congress might do something awful! Who will stop them?"

The electorate will. That is how it works in a democracy. You have to trust your fellow citizens, and it is not like there are not other checks within the system to eliminate the worst imaginable transgressions.


Did the electorate stop things like making interracial marriage illegal? Did the electorate stop laws against birth control.

We are not Britain. We have a lot more heterogeneous population. And Britain is starting to have problems with their government stretching the unwritten constitution thing beyond its meaning and doing whatever they want. By the way, without a written constitution, the British have millions of cameras recording their citizens.
Go!Bears
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The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all.

I don't believe dajo's argument extends to states and there you probably do have a point in reflecting on the past and present. You also have a failure of imagination. "When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all.

No challenge? There are lots of ways to challenge injustice. We currently use the courts because it is our custom. Have you not noticed that when the court fails, people turn to other remedies? Without the court we are not defenseless.

States could do anything they want? How is that working out for Georgia with the All-Star game? The US Congress still holds the purse strings... There are lots of options that could be as effective as the Court in sanctioning injustice.

And then the distinction between the national and state legislatures... The Congress is a co-equal branch, the states are not (Supremacy Clause)
Go!Bears
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"I don't think you can name ten things the court has done that stopped progress.


For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them."

Depending on what year you let me start, I think I can. Is Dred Scott too early? And when I start, will you have 100 Browns in response?

I understand hyperbole. There was a stretch where the court has a better record than much of its past. But there is much to worry about in the more recent past. For every Obergefehl, there is a Shelby Co and DC v Heller - and that was before the recent swing to 6-3. Our future should be in our own hands, not theirs. There was same sex marriage before the court intervened. It may have been slower but it was coming. I do not thank the court for that.

BTW, Britain is pretty diverse (Scotland, N. I., Wales, immigrants, London & the countryside...) every country has problems but theirs look small next to ours.
dajo9
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What I am saying is that the Constitution gives Congress the authority to reshape the Courts and when Congress does so, it shouldn't be subject to Judicial Review. If the Court tries to review the matter, the Executive and Legislative should ignore them for overstepping their bounds.
American Vermin
dajo9
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If you want to talk bigger picture, the biggest failing of the Constitution in the 21st century is that states have way too much power and individuals way too little power. States rights have become an exercise in subverting the will of the people and suppressing minorities.
American Vermin
BearlyCareAnymore
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dajo9 said:

If you want to talk bigger picture, the biggest failing of the Constitution in the 21st century is that states have way too much power and individuals way too little power. States rights have become an exercise in subverting the will of the people and suppressing minorities.
The Constitution was written for 13 countries to share power. 13 countries where the people of those countries viewed themselves of citizens of those countries first and American second. It was well designed for that situation. Now we are one country and view ourselves as Americans. The power sharing arrangement does not match our modern country. If I had my way all federal elections would be by popular vote, there would be no senate, and congressional districts would be drawn at the federal level by an apolitical body without regard to state borders. We would have a national system of elections where every precinct has exactly the same facilities.

I'm not sure why you take issue with the Supreme Court in the fight against States' rights. The Supreme Court is the primary body that puts limits on States' rights. I definitely think the Supreme Court should tell the states no more often, but they are the only one telling the states no at all.

I'll also tell you this. From a realistic perspective, California is much more liberal than the rest of the country. Because it is so large, many of its policies become de facto national policy because private entities that want to sell, reside, or do business in California have to comply. When you do away with California's rights along with Alabama's, don't expect the net result of that to always be positive.
BearlyCareAnymore
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dajo9 said:

What I am saying is that the Constitution gives Congress the authority to reshape the Courts and when Congress does so, it shouldn't be subject to Judicial Review. If the Court tries to review the matter, the Executive and Legislative should ignore them for overstepping their bounds.
Congress and the President can clearly pass a law changing the number of justices, the term, etc. There would be no argument from the court if such a law was passed.
BearlyCareAnymore
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Go!Bears said:


The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all.

I don't believe dajo's argument extends to states and there you probably do have a point in reflecting on the past and present. You also have a failure of imagination. "When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all.

No challenge? There are lots of ways to challenge injustice. We currently use the courts because it is our custom. Have you not noticed that when the court fails, people turn to other remedies? Without the court we are not defenseless.

States could do anything they want? How is that working out for Georgia with the All-Star game? The US Congress still holds the purse strings... There are lots of options that could be as effective as the Court in sanctioning injustice.

And then the distinction between the national and state legislatures... The Congress is a co-equal branch, the states are not (Supremacy Clause)

If you think marching around and little boycotts is remotely as effective as the court, you are kidding yourself. Georgia is doing fine in case you didn't notice. The law is in place and its going to stay in place. Congress? HA! You going to find 60 senators to overturn a state law even if they could. Give me a break. Power of the people? To do what? What do you do when your state is 30% Black and the other 70% pass laws that are against you. Or you are transgendered. Or Gay. Or Asian. Or immigrant. Good luck with that.
BearlyCareAnymore
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Go!Bears said:

"I don't think you can name ten things the court has done that stopped progress.


For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them."

Depending on what year you let me start, I think I can. Is Dred Scott too early? And when I start, will you have 100 Browns in response?

I understand hyperbole. There was a stretch where the court has a better record than much of its past. But there is much to worry about in the more recent past. For every Obergefehl, there is a Shelby Co and DC v Heller - and that was before the recent swing to 6-3. Our future should be in our own hands, not theirs. There was same sex marriage before the court intervened. It may have been slower but it was coming. I do not thank the court for that.

BTW, Britain is pretty diverse (Scotland, N. I., Wales, immigrants, London & the countryside...) every country has problems but theirs look small next to ours.
Dred Scott is a perfect example of where you guys go wrong. It was a horrible decision. However, the Supreme Court was the only chance Dred Scott had. The only way he was ever going to be freed was if the court freed him. That is exactly my point. In the vast majority of cases the court is the only chance. Dred Scott was put in no worse position by the existence of the Supreme Court or by the very horrible decision of the Supreme Court. That is why I said cases where the court actually did the harm. Failing to prevent the harm that was otherwise going to happen is not the same as causing harm.

Citizens United and Shelby County are clear cases where the court in overturning federal law did harm. I think Shelby is flat out wrong. Frankly, while I hate the result, when considering the impact of laws beyond what is right in front of you, I think the bulk of Citizens was decided correctly and that ultimately most liberals would not trade what they would have to give up to make Citizens go the other way if they truly understood what that was. I hate the second amendment. It was extremely poorly thought out. There is a method for removing it. We don't have the votes. I'm sorry, but the as much as I support the DC law, the arguments that it does not violate the second amendment are weak.

Really, you think same sex marriage was coming to the red states without the Supreme Court do you?

If I wanted to come up with "100 Browns", I could easily do so, but I'm not going to spend a couple hours compiling a list. If I were back in law school with my con law book it would be easier. Here's a few off the top of my head: Brown, Roe, Miranda, Loving, Obergefell, Griswold, Moritz (RBG won 5 Supreme Court Cases on gender discrimination herself). Torres v. Madrid just happened. Jeffers. Cohen v. CA. I've barely scratched the surface of cases where individual rights were protected that would have been violated if not for the Supreme Court.

Britain is not nearly as culturally diverse as the US. That is ridiculous. You think their problems look small? In London right now the police are parking vans with facial recognition cameras and openly scanning everyone who walks by to see if they match an interpol database. The technology is terrible and comes up with false positives all the time, but they still use it. If your face comes up positive, they pull you aside, search you, fingerprint you, and hold you until they can make a determination whether you are wanted or not. If you cover your face when you walk by they use it as a reason to grab you and search you and demand identification. They are literally scanning every single person who is simply walking down the street to determine whether they are criminals. I don't think that is a small problem. I don't call 6 million cameras set up nationwide being used by the government to surveil their people a small problem. According to their law, if you don't talk to the police when they question you, they can use that silence against you in court. I don't call that a small problem. And as a matter of historical perspective, almost every right in our Bill of Rights is there because those rights were not afforded to us by the British government.
dajo9
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OaktownBear said:

dajo9 said:

What I am saying is that the Constitution gives Congress the authority to reshape the Courts and when Congress does so, it shouldn't be subject to Judicial Review. If the Court tries to review the matter, the Executive and Legislative should ignore them for overstepping their bounds.
Congress and the President can clearly pass a law changing the number of justices, the term, etc. There would be no argument from the court if such a law was passed.


Then we are in agreement on my original point, but I see that the fault for this argument is mine. My original comment was off the point and too broad and was therefore misconstrued. The error of me being too concise.
American Vermin
dajo9
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OaktownBear said:

dajo9 said:

If you want to talk bigger picture, the biggest failing of the Constitution in the 21st century is that states have way too much power and individuals way too little power. States rights have become an exercise in subverting the will of the people and suppressing minorities.

I'm not sure why you take issue with the Supreme Court in the fight against States' rights. The Supreme Court is the primary body that puts limits on States' rights. I definitely think the Supreme Court should tell the states no more often, but they are the only one telling the states no at all.



Here you are the one doing the misconstruing. I did not take issue with the Court (although I could for it's failure to protect the rights of the individual frequently enough as per the 9th amendment), I took issue with the Constitution.
American Vermin
Go!Bears
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OaktownBear said:

Go!Bears said:

BTW, Britain is pretty diverse (Scotland, N. I., Wales, immigrants, London & the countryside...)
Britain is not nearly as culturally diverse as the US. That is ridiculous.
Why it is pointless to try to discuss anything with you. You create straw men left and right. I'm done.
concordtom
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Corn Pop said:

dajo9 said:

The error of me
You could have stopped right there and been fine


Go away.
They are having good dialogue.
concordtom
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dajo9 said:

OaktownBear said:

dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
This statement does not make any legal sense. The Constitution has a hierarchy of powers. The preamble is not just words. It specifically sets out that the people give the power to the federal government, as opposed to the states doing so in the Articles of Confederation. "We the people of the United States...establish this Constitution". Therefore, every power the Constitution grants to Congress is subject to the overriding rights that the people are given. Further, certain rights are granted to the states. There is an interplay in all of these rights. Congress cannot abridge the rights of the others in exercising its authority.

I'll take, for instance, the Defense of Marriage Act, which was clearly unconstitutional on its face. Congress acted within their authority in passing that law. In so doing they violated the individual rights of same sex couples. They also clearly overstepped their authority in regulating what is a state matter - determining marriage laws, and they overstepped their authority in essentially trying to override the full faith and credit clause. Further, clearly for any federal benefit, like social security, Congress has the authority to pass eligibility requirements. That does not mean they could say that all federal benefits that go to a spouse will only go to a spouse of a heterosexual couple. Or a same race couple. But that is the result of what you are proposing.

The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop. So what you are saying either means nothing - the court can just say, yeah, sure dajo. we agree. and move on as it always has. Or it means everything, that if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.

The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them.

Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
I know we have spent our lives in a bubble of reverence for the Constitution. Throughout our lives the only people that speak about the Constitution are historians and lawyers and they are unanimous in their reverence for the genius of the Constitution. I get it. I used to be in that bubble.

But people, particularly young people, are rising up to the realization that the Constitution was specifically written to keep people that look like them from obtaining their fair share of power and rights in this country. When actual people start sounding off on the Constitution your preferred bubble of reverence is going to pop.

So I am a little less interested in precedent and common historical readings of the Constitution than you are. Here is what I read. Article 3, Section 1:
Quote:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article 3, Section 2:
Quote:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is clearly in the driver's seat here. Anyone smart enough to have never taken a law class can easily see that. So, in the future, sometime after Biden's Presidency, when the American people are demanding an end to the tyranny of the minority placed upon us by the Supreme Court, the Senate, the Electoral College, and the Constitution itself, the American people will demand from their popularly elected President and Congress that they use these kinds of tools in the Constitution to finally give power to the people. It only takes willpower. Lawyers need not apply.

The American people aren't going to be subject to the tyrannical rule of the Courts.



Re the bolded part, to reduce the constitution to that is sad. Come on, now.
They f'd up in a few areas, but on the whole what they did was so much vaster, so far from that statement. You've completely *******ized their over-arching excellent accomplishment.
Please recant.
Consider historical precedents and see how far they moved the needle. Don't boil it down to the shortcomings.

Otherwise, love the conversation!
dajo9
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concordtom said:

dajo9 said:

OaktownBear said:

dajo9 said:

wifeisafurd said:

The president's new commission has a lot of fans in the Federalist Society.

https://www.vox.com/2021/4/10/22375792/supreme-court-biden-commission-reform-court-packing-federalist-society

Usually I think Vox is agenda driven rubbish, but this article actually has content. Seems like Biden is making a deal with SCOTUS not to pack the court. Biden can always change the composition of the Commission if SCOTUS finds his major legislation or regulatory action illegal.


SCOTUS shouldn't have the authority to overrule Congress on a power the Constitution specifically grants to Congress
This statement does not make any legal sense. The Constitution has a hierarchy of powers. The preamble is not just words. It specifically sets out that the people give the power to the federal government, as opposed to the states doing so in the Articles of Confederation. "We the people of the United States...establish this Constitution". Therefore, every power the Constitution grants to Congress is subject to the overriding rights that the people are given. Further, certain rights are granted to the states. There is an interplay in all of these rights. Congress cannot abridge the rights of the others in exercising its authority.

I'll take, for instance, the Defense of Marriage Act, which was clearly unconstitutional on its face. Congress acted within their authority in passing that law. In so doing they violated the individual rights of same sex couples. They also clearly overstepped their authority in regulating what is a state matter - determining marriage laws, and they overstepped their authority in essentially trying to override the full faith and credit clause. Further, clearly for any federal benefit, like social security, Congress has the authority to pass eligibility requirements. That does not mean they could say that all federal benefits that go to a spouse will only go to a spouse of a heterosexual couple. Or a same race couple. But that is the result of what you are proposing.

The court DOES NOT overrule Congress on any power the Constitution specifically grants to Congress unless Congress uses that power in an unconstitutional manner. Period. Full stop. So what you are saying either means nothing - the court can just say, yeah, sure dajo. we agree. and move on as it always has. Or it means everything, that if the Constitution grants Congress a power, the court has no ability to be the arbiter of whether Congress' action violates other parts of the Constitution, like say the First Amendment.

The latter argument that has become prevalent in, pardon my offense, completely brainless left wing discourse is too short sighted to see how their arguments would be disastrous to anyone who believes in left wing ideals. Without the Supreme Court ruling on the actions of states and congress, the Constitution would be a suggestion not a mandate. I could go on for months listing the awful things that would have been enacted without the Supreme Court. Further, there a lot of actions not taken for fear of being struck down after a lengthy litigation.

90% of the time, at least, that liberals get upset with the Supreme Court, they are upset that the Supreme Court did not strike down laws, not that they struck down laws. When you are upset that the Supreme Court does not strike something down a law, understand that without the court the law would have faced no challenge at all. The Supreme Court takes a lot of blame for actions of Congress and states that they do not endorse but they do not believe they have the right to strike down.

For every Citizen's United there are about 10 Brown's and about 1000 things we wish legislatures wouldn't do but it is within their right to do them.

Lastly, Congress' power has been dramatically expanded in the last 70 years. They don't need more power. They need to stop being ineffectual.
I know we have spent our lives in a bubble of reverence for the Constitution. Throughout our lives the only people that speak about the Constitution are historians and lawyers and they are unanimous in their reverence for the genius of the Constitution. I get it. I used to be in that bubble.

But people, particularly young people, are rising up to the realization that the Constitution was specifically written to keep people that look like them from obtaining their fair share of power and rights in this country. When actual people start sounding off on the Constitution your preferred bubble of reverence is going to pop.

So I am a little less interested in precedent and common historical readings of the Constitution than you are. Here is what I read. Article 3, Section 1:
Quote:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article 3, Section 2:
Quote:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is clearly in the driver's seat here. Anyone smart enough to have never taken a law class can easily see that. So, in the future, sometime after Biden's Presidency, when the American people are demanding an end to the tyranny of the minority placed upon us by the Supreme Court, the Senate, the Electoral College, and the Constitution itself, the American people will demand from their popularly elected President and Congress that they use these kinds of tools in the Constitution to finally give power to the people. It only takes willpower. Lawyers need not apply.

The American people aren't going to be subject to the tyrannical rule of the Courts.



Re the bolded part, to reduce the constitution to that is sad. Come on, now.
They f'd up in a few areas, but on the whole what they did was so much vaster, so far from that statement. You've completely *******ized their over-arching excellent accomplishment.
Please recant.
Consider historical precedents and see how far they moved the needle. Don't boil it down to the shortcomings.

Otherwise, love the conversation!
I said in a previous post upthread regarding the biggest failing of the Constitution "in the 21st century". The Constitution was a huge step forward for the 1700's. But I'm not satisfied with living under rules established for the 1700's and I don't think any of us should be. The Constitution can be both a great advance for self governance in the 1700's and a complete failure of self governance in the 21st century. That is my view.

As far as what is relevant to our governance today, we have far too few individual rights. The Federal government outsources suppression of individual rights to the states so it can wash its hands of the fact that many states suppress the rights of poc and other minorities. From 1876 to ~1954 the 15th amendment of the Constitution was completely ignored. Today, states have to be more nuanced in how they put the boot down on their people but they still do it and the Constitution enables them. The 9th amendment has always been ignored. That should be the most important amendment in the Constitution. To me, it gives me the right to vote, women the right of choice, gay people the right to marry, and on and on. Instead we here stupidity like, "the Constitution never mentions abortion". Doesn't have too - it's built into the 9th amendment.

From 2017 - 2021 we were governed by a white, rural minority only because the Constitution is designed to empower them over the rest of us. Why would any of us tolerate that? I'm interested in results for the American people. There are paths to do that within the Constitution (the 9th amendment, the 15th amendment, the clause guaranteeing that states will have republican governance, adding democratic states to the Union to balance the Senate, reforming the courts, the popular vote compact). Resolving these problems within the Constitution is better than doing so through other means, but we have to start looking at the Constitution differently to do so.
American Vermin
sycasey
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wifeisafurd said:

dajo9 said:

Additionally, the Commission is irrelevant. The current Congress has no appetite for Court reform. If additional Democratic states are added to the Senate, giving the Senate some credibility with the American people again, and if Democrats in the House can avoid gerrymander armageddon in 2022, and create a Congress that is representative of the American people and with an appetite for Court reform, then Congress has the constitutional authority to do what it wants with the courts.

That is an unlikely scenario and even if it happened, this commission would be ancient history by then.
While the prior post is blather, this post is relevant. The Commission seems like a publicity stunt to pacify the left wing of the party, and to make enough noise to scare the Justices. The Justices will do what they will do anyway given the Courts independent nature, and if the voters are angry, the legislature could do what it will do to change the court system. That amounts to a partisan declaration of war that I'm not sure Biden is prepared to wage. There is nothing magical about the number 9. There is noting magical about life terms (term limits if fact would be a more sensible reform though require a constitutional amendment). Then again when FDR threatened to pack the Court, the pushback was significant. But is was the composition of the court with FDR's new Justices under natural attrition that saw a change in the Court's view of the New Deal. Time is on Biden's time assuming he is reelected.
I basically agree with this. The commission isn't actually going to do anything, and everyone knows Democrats don't have the votes in the Senate to actually change the laws. It's more of a warning shot at the Court that reform ideas are on the table if they become an obstructive problem.
AunBear89
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Yogi Hydra Sock Puppet said (without a shred of irony or self awareness):
"He is not an honest broker, a liar, a hypocrite, and frankly, he's just not very knowledgeable on a whole range of issues."

Sock puppets gonna sock puppet...
wifeisafurd
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dajo9 said:

If you want to talk bigger picture, the biggest failing of the Constitution in the 21st century is that states have way too much power and individuals way too little power. States rights have become an exercise in subverting the will of the people and suppressing minorities.
I think Newsom and those in blue states had a very different view on states rights during the Trump years. You have enunciated your standard for thinking SCOTUS decisions are legitimate in this thread, as to whether or not you they go the way you agree with. I suspect you like states rights arguments when California is making them, and find them oppressive when they don't favor people "who look like them" and favor some other group "who doesn't look like them", the latter being people you don't like. Some might label this view bias or hypocritical.

So the Justices must feel pressure to sacrifice the legal legitimacy of their judicial decisions in order to preserve the sociological legitimacy of the Court as a whole to meet your ideology or the Court structure must be changed. Fair enough, there is very little the Court can do about the partisan maneuvering. That means we should have the Court be as unstable as the countries policies and foreign affairs every four or eight years, as the red half or left half gains power. Why even bother with third branch of government, since in your world the courts must echo what the guys that control the other two branches say?


dajo9
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wifeisafurd said:

dajo9 said:

If you want to talk bigger picture, the biggest failing of the Constitution in the 21st century is that states have way too much power and individuals way too little power. States rights have become an exercise in subverting the will of the people and suppressing minorities.
I think Newsom and those in blue states had a very different view on states rights during the Trump years. You have enunciated your standard for thinking SCOTUS decisions are legitimate in this thread, as to whether or not you they go the way you agree with. I suspect you like states rights arguments when California is making them, and find them oppressive when they don't favor people "who look like them" and favor some other group "who doesn't look like them", the latter being people you don't like. Some might label this view bias or hypocritical.

So the Justices must feel pressure to sacrifice the legal legitimacy of their judicial decisions in order to preserve the sociological legitimacy of the Court as a whole to meet your ideology or the Court structure must be changed. Fair enough, there is very little the Court can do about the partisan maneuvering. That means we should have the Court be as unstable as the countries policies and foreign affairs every four or eight years, as the red half or left half gains power. Why even bother with third branch of government, since in your world the courts must echo what the guys that control the other two branches say?





You can put words in my mouth and then call me a hypocrite but that is a reflection on you, not me.

It's a shame you act like you don't know how to read when you talk to me. I'm very clear. The current Supreme Court does not have legitimacy because its Justices are not derived from the people. The Senate does not have legitimacy because its members are not derived from the people. Trump did not have legitimacy because his Presidency was not derived from the people. That's a lot of government to not be derived from the people, don't you think?

My consistent view is majority rule with minority rights. The American people have voted for unified Republican governance only once since 1952 (2004). The American people have voted for a Democratic President in 7 of the last 8 elections. So you talking about the government flipping back and forth is actually a failing of the Constitution, not an inconsistency from the American people. When California fought Trumpism, California was on the side of the American people and the President was not. California should have never been put in that situation.
American Vermin
concordtom
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dajo9 said:



I said in a previous post upthread regarding the biggest failing of the Constitution "in the 21st century". The Constitution was a huge step forward for the 1700's. But I'm not satisfied with living under rules established for the 1700's and I don't think any of us should be. The Constitution can be both a great advance for self governance in the 1700's and a complete failure of self governance in the 21st century. That is my view.
Thank you.
I concur.

Perhaps that's why Jefferson thought we'd need a new revolution every generation - because he anticipated precisely what you are talking about.

Isn't it perhaps ironic that he helped write a document with rules for how to adjust laws, how to add amendments to the rules for adjusting laws, and which included checks and balances to make sure the Constitution was durable, editable, and not corruptable... And yet, he still thought we would need a new revolution every 20 years, as if the Constitution would ultimately fail.

That would be sad. Maybe if he marched with the troops he wouldn't have been so inviting of violent change.

https://constitutioncenter.org/blog/a-quick-look-at-thomas-jeffersons-constitutional-legacy#:~:text=Jefferson%20was%20the%20principal%20author,behind%20the%201787%20Constitutional%20Convention.&text=Jefferson%20corresponded%20regarding%20the%20failures,a%20more%20powerful%20central%20government.

BearForce2
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