Constitutionality Quotes
Jefferson was of the opinion that a central bank was unconstitutional and that it was a great economic danger to the nation, a view also held later by President Andrew Jackson.
This quotation is a great example of the difficulty of deciding some of the major Constitutional issues. Most reasonable people believe that Rehnquist certainly has a point. On the other hand, critics observe that this quotation essentially says that it is OK to convict an innocent person if it cost too much or be too much trouble to do so. Reasonable people would also agree that this objection has much merit also. So the judicial system is stuck with deciding when the cost or trouble is too much. There will never, can never, be a clear cut answer.
The colonists in America had no representatives in Parliament. Galloway who opposed armed rebellion against Britain {621966} admitted that the British treatment of America was wrong but saw other solutions. It will never be known if any of them might have worked. The world would have been very different had they been tried.
Many politicians were arguing that giving the intelligence agencies more power to wiretap, bug and hack into personal communications despite the 4th Amendment’s strictures argued that the public was in rational fear of terror attacks and had a right to be protected.
What made this quotation very dramatic was that the state of Virginia, under the previous administration dominated by religious fundamentalists had passed a law banning same sex marriage. Several private Virginia citizens had sued the State in Federal Court, asserting that their Constitutional rights were violated by the ban. The Attorney general normally defends the state in any court proceeding. However, Herring agreed with the plaintiffs on the case, that the Virginia law was unconstitutional, so he and the State entered the case on the side of the plaintiffs and against the state law. His reference to the right side of history was related to the fact that as late as 1964 Virginia had a law prohibiting interracial marriage which they enforced and the Supreme Court invalidated. Thus, on marriage, Virginia had a track record of being on the wrong side of history and the law.
President George W. Bush had ignored a federal law and tapped the phones of Americans without probable cause and a warrant issued by a court. The President’s defenders argued that the President, as Commander in Chief, has the Constitutional responsibility to lead the military and protect the nation. Intelligence gathering is part of military activity. Therefore the intelligence gathering is a Constitutional duty and the Congress, under the separation of powers doctrine, may not interfere with the President’s Constitutional Duty to conduct intelligence. Under this doctrine, the President need not obey laws that he believes impinge on his management of the war effort and the defense of the nation. Most legal scholars believe that this argument is nonsense, but the George W. Bush administration has stated the doctrine and it was the subject of much litigation.
Tinker referred to the Supreme Court Case of Tinker v. Des Moines where the court ruled that school children had Constitutional rights as well as adults. It was not possible to have a blocking system that would keep “improper” or “indecent” internet sites from library or school computers. Even if it could, the appropriate material for a 17 year old to see and a 5 year old were very different. The blocking software never worked well. Computer sophisticated students would pride themselves by showing how they could evade the blocking software, and at the same time teen age girls would have health sites blocked because they showed how to do breast self-examinations.
Essentially, Scalia held that it was the job of the legislature to correct evils of society that he felt were not specifically mentioned in the Constitution. Other justices have argued that if the things are so evil and serious that they deny an individual the rights that were mentioned in the Constitutional, then they might be unconstitutional.
This is a great example of politically sophisticated oratory. The decision was that the crèche violated the constitution and the state opinion was split between those in favor and those opposed. A reporter asked the governor what she thought of the court decision. Her response not only amused the public and the press but completely avoided having to take a stand on the issue of religious symbols being exhibited on state property.
Actually it was Thomas Jefferson who had drafted most of the language. This attack was aimed at President John Adams, the big supporter of the unpopular Alien and Sedition laws, and the man Jefferson was intent on unseating at the end of his first term. He did and destroyed the Federalist Party in the process.
Cummings was arguing against a Constitutional amendment. His alternative led to Roosevelt's court packing schema.
One of the conundrums of our constitutional system is who has the last word as to what the Constitution means. Essentially it is the judicial branch headed by the Supreme Court. But there are those who believe that the current popular majority should have a say in what is or is not constitutional. If so the legislative branch should have the last word. Still others say that the President is the only person elected by ALL the people, so his opinion most reflects the will of the public. And then there are most who argue that the Constitutional system was created just to avoid the power of currently popular majorities, and the courts should decide based on the Constitution itself. So the statement has very little meaning except that Phillips thinks that the courts have too much power. Whoever gets to decide what is or is not Constitutional will be accused of being “over” the Constitution by those who don’t like the decisions. In our system, that is the courts.
What makes this quotation so historically interesting is that the abiding by the Supreme Court’s decisions on constitutionality was even an issue. It was because of the terrible Dred Scott decision which required Northern States to return fugitive slaves to their owners despite the constitutions of those states which stated that all men were free. A substantial part of the Democratic Party was the “solid South” and the return of fugitive slaves was one of the major issues of the 1860 Presidential Election. Ironically, the Southern States were arguing AGAINST states’ rights when the Northern States’ laws and Constitutions made fugitive slaves free the minute they set foot in the state.
The Chief Justice at the time was an ultra-conservative judge, who together with his 8 colleagues—all conservative—had blocked much of the democratic and progressive legislation that the Congress had passed. FDR had a much different legal and philosophical view of the Constitution than the Chief Justice, and the court would declare much of his New Deal legislation, passed in the emergency of the Great Depression, unconstitutional. Almost all of those “unconstitutional” things were years later passed again and this time a more modern court found they were Constitutional.
The FBI had obtained a court order requiring apple to write software that could hack into a person's iPhone. Apple, with most other hi-tech companies in support, filed a motion with the court opposing the order. The FBI shortly thereafter withdrew its request for the order saying that they had found other solutions, when they had originally told the court that there were no other solutions.
