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I'm not sure we are really disagreeing here. Or, I'm trying to say that when the Supreme
Court says that something's unconstitutional,
that's the 100% true, authentic, genuine,
dyed in the wool, can take it to the bank
position that all courts and the other two
branches will honor. If Senator Wyden says
that something's unconstitutional and that is
why he's voting the way he is, say, on the
Senate Intel Committee, fine, but the courts
and the Executive branch won't honor that
yet. Or, for something hypothetical, the
Senate could pass a resolution that the
Patriot Act was unconstitutional, and then
people would be surprised but otherwise
nothing would have changed. If the Senate
and House want to kill the Patriot Act,
because it's unconstitutional or just because
they don't like the title, then they just
write such a bill and pass it by 2/3rds in
both houses or pass it by 51% in both
houses and try to get the president to
sign. Also, Congress could repeal the
Patriot Act, saying it was unconstitutional,
on Monday and enact it again
on Tuesday without mentioning constitutionality
and give any reasons they want or no
reasons. Or, I can say something's unconstitutional
and so can you and so can anyone, but
when the Supreme Court says so, it really
sticks. To me, this is a difference in kind. Again I doubt that we disagree. |
I don't see how that's different than it is for the courts. If Justice Scalia writes a book describing his theory of constitutional interpretation and how he thinks specific cases should have come out, that doesn't mean anything the same as an individual Senator's speech or a Congressional resolution doesn't mean anything.
>Also, Congress could repeal the Patriot Act, saying it was unconstitutional, on Monday and enact it again on Tuesday without mentioning constitutionality and give any reasons they want or no reasons.
So can the Supreme Court. For example, Plessy v. Ferguson has since been overruled. Conversely, the modern interpretation of the commerce clause is a lot broader than it was prior to the New Deal. Granted the court is supposed to give a reason, but they don't actually have to, and in many cases the "reason" is just that they now disagree with the previous precedent (and the real reason is often that different people are now on the Court).
>Or, I can say something's unconstitutional and so can you and so can anyone, but when the Supreme Court says so, it really sticks. To me, this is a difference in kind.
I don't see how you're distinguishing this from when Congress "says so" by enacting legislation or the president "says so" through an executive order. Obviously they have to do so in their official capacity and (for Congress) have a majority in agreement, but so does the court.