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Old 30th August 2019, 10:41 PM   #1
BobTheCoward
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Implication of "respecting an establishment of religion"

Let's look at the first amendment

Quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I have been getting more into textualism and have been thinking about the Brandenburg cross case.

Suppose Congress gave a billion dollars to the department of the interior to build monuments and to use their discretion. The department elects to build a bunch of churches.

I can't figure out why this would violate the first amendment. The prohibition is against Congress making a law respecting an establishment. But the law in this case would not be in respect to religion. It is no way in regards to religion. The law is respecting general budgeting. The amendment appears silent on government groups that are not Congress using laws with no regards to establishment, to accomplish the establishment of religion.

In your interpretation of the first amendment, if you think it does ban that activity, how do you reach that conclusion?
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Old 30th August 2019, 11:20 PM   #2
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Originally Posted by BobTheCoward View Post
Let's look at the first amendment



I have been getting more into textualism and have been thinking about the Brandenburg cross case.

Suppose Congress gave a billion dollars to the department of the interior to build monuments and to use their discretion. The department elects to build a bunch of churches.

I can't figure out why this would violate the first amendment. The prohibition is against Congress making a law respecting an establishment. But the law in this case would not be in respect to religion. It is no way in regards to religion. The law is respecting general budgeting. The amendment appears silent on government groups that are not Congress using laws with no regards to establishment, to accomplish the establishment of religion.

In your interpretation of the first amendment, if you think it does ban that activity, how do you reach that conclusion?
It seems that your issue is not with the 1st, but the 14th Amendment which became the basis of enforcing the constitution on anyone acting on behalf of Congress, or for any State or local government, and requires equal protections for all citizens. Thus no one working for the State can show favour to one group over another. By building Churches they would be showing favour to one religion over all the others, and as such violating the 1st amendment rights of people of religions other than Christianity, to be treated equally as required under the 14th.
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Old 30th August 2019, 11:54 PM   #3
BobTheCoward
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Originally Posted by PhantomWolf View Post
It seems that your issue is not with the 1st, but the 14th Amendment which became the basis of enforcing the constitution on anyone acting on behalf of Congress, or for any State or local government, and requires equal protections for all citizens. Thus no one working for the State can show favour to one group over another. By building Churches they would be showing favour to one religion over all the others, and as such violating the 1st amendment rights of people of religions other than Christianity, to be treated equally as required under the 14th.
A few points

A) I can't tell if you even think my interpretation is correct before the 14th amendment existed.

B) to be clear for anyone else that posts, we are discussing federal laws in this scenario

C) I think the relevant part of the 14th you refer to is here "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." I'm not sure how you get 'anyone acting on behalf of Congress' from that

D) if we settle on A-C, we are still presented with a textualist issue. It seems the right from the first amendment is protection from a legislature passing a law with repecting establishment, not a general value of protection from establishment. Even with the 14th, how is it turned that way?
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Old 31st August 2019, 12:08 AM   #4
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Originally Posted by BobTheCoward View Post
Suppose Congress gave a billion dollars to the department of the interior to build monuments and to use their discretion. The department elects to build a bunch of churches.

I can't figure out why this would violate the first amendment.
You might be right but it would ultimately depend on how the SC judges rule.
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Old 31st August 2019, 12:12 AM   #5
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Originally Posted by psionl0 View Post
You might be right but it would ultimately depend on how the SC judges rule.
How they rule is irrelevant. How the rule is enforced and what the rule means are two different things. No supreme Court decision can alter the nature of reality....it just means the government has to do it wrong from then on.
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Old 31st August 2019, 01:01 AM   #6
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Originally Posted by BobTheCoward View Post
How they rule is irrelevant. How the rule is enforced and what the rule means are two different things. No supreme Court decision can alter the nature of reality....it just means the government has to do it wrong from then on.
There is no point persisting with this but I will remind you that it isn't what the constitution says that matters, it's what the SC says it says.
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Old 31st August 2019, 05:10 AM   #7
BobTheCoward
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Originally Posted by psionl0 View Post
There is no point persisting with this but I will remind you that it isn't what the constitution says that matters, it's what the SC says it says.
You don't have the power to determine what matters to an individual.

I only deal in hypotheticals.

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Old 31st August 2019, 07:31 PM   #8
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Originally Posted by BobTheCoward View Post
Suppose Congress gave a billion dollars to the department of the interior to build monuments and to use their discretion. The department elects to build a bunch of churches.
A monument is not a church. So your real question is, what if Congress instructed a department to do one thing, but they did something else? And what if that something else violated the Constitution?

Quote:
I can't figure out why this would violate the first amendment.
Nor me. I mean, where in the first amendment does it say that a department has to do what Congress tells it? Does adding 'use your discretion' give a department the right to do whatever they like?

Definition of discretion

b : power of free decision or latitude of choice within certain legal bounds

But what if the 'legal bounds' themselves are 'at their discretion'? does that leave it up to the department to decide what the legal bounds are? It's a puzzle for sure - if only there was a body, explicitly established by the Constitution, whose purpose was to rule on such matters!
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Old 1st September 2019, 08:00 AM   #9
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Originally Posted by BobTheCoward View Post
<respectful snip>

...In your interpretation of the first amendment, if you think it does ban that activity, how do you reach that conclusion?
Precedent regarding separation of church and state
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Old 1st September 2019, 08:14 AM   #10
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Originally Posted by BobTheCoward View Post
I can't figure out why this would violate the first amendment.
"I can't figure it out" says the guy who fetishizes not being able to figure stuff out and treats figuring stuff out as a character fault.

Shocking.

Nobody's going to try to explain Constitutional Law to the "Don't tell me water is wet" guy.
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Old 1st September 2019, 08:20 AM   #11
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Originally Posted by BobTheCoward View Post
How they rule is irrelevant. How the rule is enforced and what the rule means are two different things. No supreme Court decision can alter the nature of reality....it just means the government has to do it wrong from then on.
That's inane even by your standards. The Constitution of the United States laid down guidelines for running a country, not immutable physical laws of reality.
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Old 1st September 2019, 08:21 AM   #12
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Originally Posted by BobTheCoward View Post
I only deal in hypotheticals.
Okay. What if you hypothetically debated honestly for once and had a point?
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Old 1st September 2019, 08:46 AM   #13
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Originally Posted by Thermal View Post
Precedent regarding separation of church and state
But precedent may or may not be a correct interpretation.
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Old 1st September 2019, 08:48 AM   #14
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Originally Posted by JoeMorgue View Post
Okay. What if you hypothetically debated honestly for once and had a point?
If I had a position, I wouldn't make a thread, because I would be content in my position that I wouldn't care to receive feedback on it or share it. I start threads on things I don't have answers for. It isn't a debate.
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Old 1st September 2019, 08:58 AM   #15
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Originally Posted by BobTheCoward View Post
But precedent may or may not be a correct interpretation.
Of the authors? Possibly. But some of us take the Constitution as a living document, not a stagnantt treatise. You know the argument from there, I am sure
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Old 1st September 2019, 09:01 AM   #16
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Originally Posted by Thermal View Post
Of the authors? Possibly. But some of us take the Constitution as a living document, not a stagnantt treatise. You know the argument from there, I am sure
Not really. What is a living document?

ETA: because I'm on the Wikipedia page and I get this

Quote:
In United States constitutional law, the Living Constitution, also known as loose constructionism, permits the Constitution as a static document to have an interpretation that shifts over time as the cultural context changes. The opposing view, originalism, holds that the original intent or meaning of the writers of the Constitution should guide its interpretation.
Because this makes it sound like new interpretation as culture changes. But that is interpretation, not amending. My interpretation in my OP is a living Constitution interpretation....I'm making zero consideration for the original meaning.

As an interpretation, it sounds like you would still be accountable for providing that interpretation of the actual words. It also sounds like a living Constitution can ignore precedent with changing cultural context.

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Old 1st September 2019, 09:21 AM   #17
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I would argue that the Spirit of the wording was for government to not interfere, which has been broadened to mean not being involved at all
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Old 1st September 2019, 09:31 AM   #18
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Originally Posted by Thermal View Post
I would argue that the Spirit of the wording was for government to not interfere, which has been broadened to mean not being involved at all
Before we go further, do you agree that my interpretation of the actual wording is correct? If so, then there is something to discuss about actual versus spirit. If you disagree, then we really don't have a conversation about a living Constitution: you simply reject my literal interpretation.
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Old 1st September 2019, 09:42 AM   #19
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Originally Posted by BobTheCoward View Post
Before we go further, do you agree that my interpretation of the actual wording is correct? If so, then there is something to discuss about actual versus spirit. If you disagree, then we really don't have a conversation about a living Constitution: you simply reject my literal interpretation.
In a fit of pedantics, we would both need to have sufficient fluency in the precise meaning of 18th century word and phrase usage, and I'm not entirely sure we do. What nuances did 'establish' carry then? Was it limited to 'founding'? I doubt it. But that's why I find it fruitless to dissect the exact words.
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Old 1st September 2019, 09:44 AM   #20
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Originally Posted by Thermal View Post
In a fit of pedantics, we would both need to have sufficient fluency in the precise meaning of 18th century word and phrase usage, and I'm not entirely sure we do. What nuances did 'establish' carry then? Was it limited to 'founding'? I doubt it. But that's why I find it fruitless to dissect the exact words.
I'm not making an originalist argument. We are both discussing the first amendment in the context of today. In the context of today, is my literal interpretation correct?


ETA: I also made the scenario attached so extreme, that we would not need a nuanced understanding of the word establishment. They are literally building monuments declaring a state religion. I bulldozed over subtlety.

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Old 1st September 2019, 09:56 AM   #21
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Originally Posted by BobTheCoward View Post
I'm not making an originalist argument. We are both discussing the first amendment in the context of today. In the context of today, is my literal interpretation correct?


ETA: I also made the scenario attached so extreme, that we would not need a nuanced understanding of the word establishment. They are literally building monuments declaring a state religion. I bulldozed over subtlety.
I think I see your point: you ask how church building would violate the first amendment specifically, based on the exact wording? I would counter by asking how it would violate the second, specifically. Whether something is unconstitutional shouldn't be limited to one specific part. I would opine that we should interpret anything in light of the entire Constitution, amendments and extrapolations and the whole shebang

Eta: truth be told, I would reject almost any literal interpretation
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Old 1st September 2019, 10:00 AM   #22
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Originally Posted by Thermal View Post
I think I see your point: you ask how church building would violate the first amendment specifically, based on the exact wording? I would counter by asking how it would violate the second, specifically. Whether something is unconstitutional shouldn't be limited to one specific part. I would opine that we should interpret anything in light of the entire Constitution, amendments and extrapolations and the whole shebang
I agree. And I thought I did that. So how am I wrong?
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Old 1st September 2019, 10:07 AM   #23
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Originally Posted by BobTheCoward View Post
I agree. And I thought I did that. So how am I wrong?
Not wrong so much as overly relying on the specifics of budgeting constraints.
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Old 1st September 2019, 10:10 AM   #24
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Originally Posted by Thermal View Post
Not wrong so much as overly relying on the specifics of budgeting constraints.
How so?
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Old 1st September 2019, 10:13 AM   #25
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Originally Posted by BobTheCoward View Post
How so?
Let me get back to you to give your argument more thought. Driving now and almost ran over some pedestrians while posting. The former is not really related to the latter but I do like to focus on one thing at a time
N6 yt?
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Old 1st September 2019, 10:48 AM   #26
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Originally Posted by Thermal View Post
Driving now and almost ran over some pedestrians while posting.
Seriously?
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Old 1st September 2019, 11:04 AM   #27
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Originally Posted by zooterkin View Post
Seriously?
Pretty close. Beach town, and tourists waddle off the sidewalk with no regard for a few tons of steel hurtling at them at 35 mph and 20 feet away
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Old 1st September 2019, 11:05 AM   #28
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Originally Posted by BobTheCoward View Post
You don't have the power to determine what matters to an individual.

I only deal in hypotheticals.
This is just my interpretation:

The 1st amendment doesn't stop the government building "churches" - buildings that can be used by religious organizations (among others). However, it probably prevents the government legislating which religions may use the churches and maybe even prevents them from legislating licence requirements.

As to whether the government could build churches that are only suitable for specific religions (eg Catholic churches), I'm not so sure about. It isn't creating a law but its actions would discriminate amoung religions.
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Old 2nd September 2019, 05:42 AM   #29
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Originally Posted by Thermal View Post
Pretty close. Beach town, and tourists waddle off the sidewalk with no regard for a few tons of steel hurtling at them at 35 mph and 20 feet away
I think the "seriously" was meant more for the surprising fact that you think it's OK to drive and post on internet forums at the same time.
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Old 2nd September 2019, 02:31 PM   #30
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Originally Posted by psionl0 View Post
This is just my interpretation:

The 1st amendment doesn't stop the government building "churches" - buildings that can be used by religious organizations (among others). However, it probably prevents the government legislating which religions may use the churches and maybe even prevents them from legislating licence requirements.

As to whether the government could build churches that are only suitable for specific religions (eg Catholic churches), I'm not so sure about. It isn't creating a law but its actions would discriminate amoung religions.
CHapels on US Military based can be used by any religion that has legal status as such. THe government cannot favor one over another.
Some bases have chapels devoted to specific religions, but they were paid for by the religious groups involved;only official government involment was giving them permission to do so.
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Old 2nd September 2019, 07:32 PM   #31
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Originally Posted by dudalb View Post
CHapels on US Military based can be used by any religion that has legal status as such.
Does that mean that followers of the Klingon religion can't use the chapels?
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Old 2nd September 2019, 09:33 PM   #32
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I have no opinion on that.
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Old 3rd September 2019, 03:21 AM   #33
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Originally Posted by BobTheCoward View Post
I'm not making an originalist argument. We are both discussing the first amendment in the context of today. In the context of today, is my literal interpretation correct?


ETA: I also made the scenario attached so extreme, that we would not need a nuanced understanding of the word establishment. They are literally building monuments declaring a state religion. I bulldozed over subtlety.
Well, why didn’t you say that in the first place?

I suppose Congress could use some funds to build a monument to a specific church. Perhaps some church that had significance in the Revolutionary War, but as soon as you let someone hold a service, then it is no longer a monument, it is really an active place of worship and Congress has therefore spent money on the establishment of a religion (or the furthering of one religion over another). So:no. It would not be kosher.

If this thread isn’t amusing enough for you, go ahead a start a similar one on a Christian board, but substitute mosques for churches.
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Old 3rd September 2019, 05:13 AM   #34
BobTheCoward
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Originally Posted by Ladewig View Post
Well, why didn’t you say that in the first place?

I suppose Congress could use some funds to build a monument to a specific church. Perhaps some church that had significance in the Revolutionary War, but as soon as you let someone hold a service, then it is no longer a monument, it is really an active place of worship and Congress has therefore spent money on the establishment of a religion (or the furthering of one religion over another). So:no. It would not be kosher.

If this thread isn’t amusing enough for you, go ahead a start a similar one on a Christian board, but substitute mosques for churches.
Congress would not be the one using the funds.
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Old 3rd September 2019, 05:34 AM   #35
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Originally Posted by BobTheCoward View Post
How they rule is irrelevant. How the rule is enforced and what the rule means are two different things. No supreme Court decision can alter the nature of reality....it just means the government has to do it wrong from then on.
The constitution dictates that the SC is the authority on the meaning of the law. How they rule is extremely relevant.

The literal text of the constitution is not the only thing at play here. Jurisprudence, legal opinion from the SCOTUS that has been developed over many decades of trials and rulings, is also relevant. Ignoring that is ignoring the authority that is granted to the SCOTUS as prescribed in the Constitution.

Deliberately ignoring this context when reading the Constitution is anti-Constitutional.

As such, I don't see how Congress laundering public money through some administrative intermediary would make such a scheme consistent with the jurisprudence developed around 1A.
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Old 3rd September 2019, 05:37 AM   #36
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Originally Posted by jeremyp View Post
I think the "seriously" was meant more for the surprising fact that you think it's OK to drive and post on internet forums at the same time.
I don't think it's OK. Just doesn't break my top 5 list of not-OK habits.
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Old 3rd September 2019, 05:38 AM   #37
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Originally Posted by Ladewig View Post
I suppose Congress could use some funds to build a monument to a specific church. Perhaps some church that had significance in the Revolutionary War, but as soon as you let someone hold a service, then it is no longer a monument, it is really an active place of worship and Congress has therefore spent money on the establishment of a religion (or the furthering of one religion over another). So:no. It would not be kosher.
But did congress make a law in doing so?

I would say that unless the building wasn't suitable for an assembly, it would be unconstitutional to deny anybody the use of the building on religious grounds.
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Old 3rd September 2019, 05:57 AM   #38
BobTheCoward
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Originally Posted by SuburbanTurkey View Post
The constitution dictates that the SC is the authority on the meaning of the law. How they rule is extremely relevant.

The literal text of the constitution is not the only thing at play here. Jurisprudence, legal opinion from the SCOTUS that has been developed over many decades of trials and rulings, is also relevant. Ignoring that is ignoring the authority that is granted to the SCOTUS as prescribed in the Constitution.

Deliberately ignoring this context when reading the Constitution is anti-Constitutional.

As such, I don't see how Congress laundering public money through some administrative intermediary would make such a scheme consistent with the jurisprudence developed around 1A.
We simply can ignore their jurisprudence in Constitutional interpretation when they are wrong. What would actually happen to the law and what the Constitution actually says should happen are different things. The supreme Court has a bad Track record on truth.
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Old 3rd September 2019, 06:04 AM   #39
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Originally Posted by BobTheCoward View Post
We simply can ignore their jurisprudence in Constitutional interpretation when they are wrong. What would actually happen to the law and what the Constitution actually says should happen are different things. The supreme Court has a bad Track record on truth.
The only authority that can declare a SCOTUS opinion incorrect is another SCOTUS opinion, which regularly occurs. Even "wrong" opinions are the law of the land until overruled.

The text of the law can be read many different ways. That's why there must be a central authority that decides which reading is "correct", and which ones are not. Otherwise, many disputes would just end in stalemate of different interpretations of the same text. The most extreme examples of this includes sovereign citizen types who proclaim some "true understanding" of the law and reject most lawful authority.

My point remains. The SCOTUS is constitutional, and the power they exercise is constitutional. Interpreting the constitution independent of SCOTUS opinion is antithetical to the text of the constitution. The constitutional antidote to the SCOTUS ruling "incorrectly" is to convince the SCOTUS to change their mind and overrule previous jurisprudence.
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Old 3rd September 2019, 06:05 AM   #40
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BobTheCoward:

As I and others have noted, your argument seems to rely on the technicalities of the wording of 1A. Something's compliance with the Constitution relies on the SCOTUS opinion, per the Constitution, and the entire doc. What exactly is the point of this narrow tunnel vision WRT the wording of 1A?
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