"Legal Progressivism" & Madison (cont.)

[notyoueither]

Torture can be part of a process of the normalisation of violence in society and this a dangerous phenomenon.

Yes.

It can also be awkward when you complain about your nationals being tortured in foreign domains when some of their nationals have been tortured at your bidding.

[Zevico]

This travail into torture aside, I await Lori's response. What say you, Lori--Hamilton the progressivist: yea, or nay?

[DaShi]

Then what are the terms of the authority granted, are there other warrantless wiretaps granted, and what are the methods of oversight if any?

You're not a lawyer?

[Berzerker]

No legislative act, therefore, contrary to the Constitution, can be valid

and who decides that?

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.

the courts?

Progressive legal interpretation conflates the judicial power with the legislative power because it requires the judiciary to make and, indeed, in fact override and ignore those laws with which it disagrees. As I've said earlier, the judiciary's law-making role exists only to fill in the gaps where the law is ambiguous. Where the law is unambiguous, changing it from the bench is a usurpation of the legislative function.

not the courts?

[Zevico]

Courts, in interpreting the Constitution, exercise judicial power.

Interpreting the Constitution (and the law) means ascertaining what meaning it bore upon its enactment. To the extent of any inconsistency with the Constitution, any other American law (federal or state) may be invalidated by the courts.
This is because it is, among other things, the function of the courts to ensure, in the context of a legal dispute between parties, that the highest law of the land--the Constitution--over which all other laws are subordinated--prevails.

You can see how ignoring the terms of the Constitution (and ignoring its proper interpretation) is to amend rather than interpret its text. That is to usurp the legislative function (more precisely, the function reserved to the legislatures of the several States). The same principle also applies to any other law which the judiciary chooses to amend.

If you had bothered to quote the paragraph of Hamilton's writings in full you would know this.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

[DaShi]

And if you had read a little more, you'd see it said, "How to Cook for forty humans."

[Zevico]

And if you had read a little more, you'd see it said, "How to Cook for forty humans."

Really?

[Berzerker]

Courts, in interpreting the Constitution, exercise judicial power.

Interpreting the Constitution (and the law) means ascertaining what meaning it bore upon its enactment. To the extent of any inconsistency with the Constitution, any other American law (federal or state) may be invalidated by the courts.
This is because it is, among other things, the function of the courts to ensure, in the context of a legal dispute between parties, that the highest law of the land--the Constitution--over which all other laws are subordinated--prevails.

You can see how ignoring the terms of the Constitution (and ignoring its proper interpretation) is to amend rather than interpret its text. That is to usurp the legislative function (more precisely, the function reserved to the legislatures of the several States). The same principle also applies to any other law which the judiciary chooses to amend.

If you had bothered to quote the paragraph of Hamilton's writings in full you would know this.

You read it and decided the part you bolded contradicts what I just said? It doesn't, Hamilton further backs up the part I quoted, he doesn't argue against what he just advocated - but you did. Here's what you said:

Progressive legal interpretation conflates the judicial power with the legislative power because it requires the judiciary to make and, indeed, in fact override and ignore those laws with which it disagrees. As I've said earlier, the judiciary's law-making role exists only to fill in the gaps where the law is ambiguous. Where the law is unambiguous, changing it from the bench is a usurpation of the legislative function.

That bolded part aint what Hamilton said, he said the Constitution trumps statutes when a conflict arises.

[Zevico]

In this instance the law is the Constitution--a fundamental law over which all other laws prevail. But the Constitution is still a law. It is a law that prevails over other laws. One may as well argue that the judiciary rewrites the law by voiding a regulation inconsistent with a statute under which the regulation is purportedly made. In each case the judiciary is simply recognising the existence of a higher law (the Constitution; a statute of Congress) over a subordinate law (a statute of Congress; a regulation made under a statute of Congress). The principle is the same.

Perhaps your point is a different one from the one I am addressing. If so, I would appreciate it if you were to clarify that point.

[Berzerker]

if you're talking about the courts just ignoring the Constitution and invalidating laws they dont like then we agree, but I also expect and want courts to invalidate laws that are not consistent with the Constitution.

[Zevico]

if you're talking about the courts just ignoring the Constitution and invalidating laws they dont like then we agree, but I also expect and want courts to invalidate laws that are not consistent with the Constitution.

Of course. Frankly if it wasn't clear that I agreed with this view from the outset, it's obvious that I need to improve my writing.