The Supreme Court & Obamacare

[MadImmortalMan]

Lefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

Seems pretty consistent in both cases, no?

RvW overturned state law right?

[MadImmortalMan]

My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

Forgive my re-hashing. So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution, the court would still assume it were constitutional unless...what? At what point does it become appropriate for the court to question the constitutionality of the law? Assume I'm talking about a thing that is unconstitutional for the reason of not being enumerated or implied, not a thing that is expressly forbidden in the BoR or whatever.

I don't see how they could ever overturn anything legitimately unless it were slavery or something similarly expressly forbidden. There has to be some point, even if short and cursory, where the government's counsel has to state the empowering language supporting the power being exercised in the law in question.

[DontSayBanana]

So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution...

That's exactly the problem.  That's one of the rarest beasts in law.  On one hand, you've got "strict construction", and on the other hand, you've got the "living document" crowd.

[Ideologue]

The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.

Didn't create a new right.  Recognized that the right to privacy extended, shockingly enough, to a woman's womb.

[Jacob]

The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.

No one's arguing that the rightist view of activist judges is inconsistent, least of all I. It seems very consistent to me.

What I'm arguing is that the leftist view of activist judges is equally consistent, but based on a different consistency-test than that used by the rightist judges.

[Ideologue]

I think "judicial activism" is a phrase you dudes are giving too much thought to.  It means nothing; the important part is that Dems are finally playing by the rules of the game, which is to make wild, unsupportable accusations in the form of sound bytes so as to erode support amongst his enemies with the rubes that elect our officials.

I hope next Obama accuses Santorum of religious fundamentalism not unlike that of a September 11th bomber and Romney of being a Cylon.

[Admiral Yi]

Didn't create a new right.  Recognized that the right to privacy extended, shockingly enough, to a woman's womb.

Which amendment safeguards the right to privacy?

[Admiral Yi]

No one's arguing that the rightist view of activist judges is inconsistent, least of all I. It seems very consistent to me.

What I'm arguing is that the leftist view of activist judges is equally consistent, but based on a different consistency-test than that used by the rightist judges.

And I'm arguing that the leftist view is patently inconsistent.  There are numerous cases of legislation being overturned that our ostensible defenders of judicial restraint didn't raise a peep about.

[Ideologue]

The Fourteenth.  It says so like eighty times in the opinion.   Also, about six other amendments give rise to such a right, as does the common law.  I don't think you can realistically argue there is no right to privacy in the U.S., or that prohibiting a woman to do things to her own body does not involve her right to privacy, which is why the state interest must be compelling.  (Which is why only straight-up embryonic/fetal personhood arguments are viable, if, as I've come to conclude after many years, they are not compelling enough. [Although interestingly enough by the relevant metrics reasonably swift postpartum infanticide should not be much more troublesome, yet it is.])

I mean, can they outlaw miscegenation (Loving), contraception (Griswold), and sodomy (Lawrence) too, since if you do a word search of the constitution it doesn't return anything for "privacy"?

[Sheilbh]

At what point does it become appropriate for the court to question the constitutionality of the law?

When its constitutionality is challenged in the Court.  Congress and the Executive are sworn to uphold the Constitution it would be very odd indeed if they weren't given the benefit of the doubt that that's what they were doing.  I imagine there's probably some preamble to most bills or acts of Congress that refer to the Constitution in some way.

And if you look at what would happen without the presumption you see the problem.  If the starting assumption is that legislation isn't constitutional until it's demonstrated otherwise then that puts the Courts in an enormous position of power, subordinates the other two branches of government and puts the Executive in a very odd position.  The Court's role changes from being adjudicating potential transgressions against the Constitution into certifying whether law (every law) made by the elected branches of government is legitimate or not. 

What should the Executive or an individual do with a law passed by Congress and signed into law by the President but not yet ruled on by the Court?  If it's not within the Constitution then surely the President shouldn't try and enforce it and a good argument could be made that individuals or state officials should disobey it - until it gets approved by the Court. 

[grumbler]

And if you look at what would happen without the presumption you see the problem.  If the starting assumption is that legislation isn't constitutional until it's demonstrated otherwise then that puts the Courts in an enormous position of power, subordinates the other two branches of government and puts the Executive in a very odd position.  The Court's role changes from being adjudicating potential transgressions against the Constitution into certifying whether law (every law) made by the elected branches of government is legitimate or not. 

The bigger problem is that the Court could pocket-veto any legislation whose validity they could not deny by an open decision.

Logically, also, if the actions of the legislature were presumed unconstitutional until approved by the courts, so too could the actions of the executive.  Imagine the difficulties that that would create! 

[The Minsky Moment]

It seems to me a problem with the left's definition of judicial activism is that it's invoked very selectively.  The cases that came to mind were the Texas dick sucking law and the various gay marriage overturns.

All accusations of activism are selective because activism is in the eye of the beholder. 
Upholding the mandate could be activist because it would endorse intrusive federal power; striking down is activist because departs from prior precedent to nullify an act of the legislature.

On gay marriage, the pro-gay marriage opinions are activist for striking down state laws; the anti-opinions are activist for refusing to apply simple Equal Protection principles.

[The Minsky Moment]

Forgive my re-hashing. So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution, the court would still assume it were constitutional unless...what? At what point does it become appropriate for the court to question the constitutionality of the law?

In law-speak, when there is a "Case or Controversy" brought by someone who has "standing".  In plain English, this happens when the law is applied (or in some cases threatened to be applied) to some one or some group who will be harmed.  At that point, the affected party can sue and the Court can decide on it.  If no one is offended, the law may stay on the books for a long time.

[MadImmortalMan]

I see. That makes sense. So who has the burden of proof when someone makes a complaint of unconstitutionality? Is it up to the claimant to prove why it's not constitutional or does it then pass to the government to show where it derived the power in question?

[DontSayBanana]

I see. That makes sense. So who has the burden of proof when someone makes a complaint of unconstitutionality? Is it up to the claimant to prove why it's not constitutional or does it then pass to the government to show where it derived the power in question?

The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."