Has a question on natural law ever been asked of a U.S. Supreme Court nominee in a confirmation hearing? Has natural law ever been asked of U.S. Supreme Court nominee in a confirmation hearing? Whether or not a candidate for the U.S. Supreme Court believes there is natural law or what his thoughts of its role in human law are would pertain to his judicial philosophy, so it seems such a question would be asked of him. Cicero De Republica 3.22.33 There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens; one thing today and another tomorrow; but in all times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its promulgator, its enforcer. He who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present life.
Yes In 2010, on the last day of her testimony before the Senate Judiciary Committee, Justice Elena Kagan, was asked “Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?,” by Senator Tom Coburn of Oklahoma. When Kagan began to answer by stating that she “accept[ed]” the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment guarantees an individual right to keep and bear arms, Coburn interrupted to clarify that he was not asking whether she believed the right to be protected by the Constitution, but rather whether she considered it to be a “natural right.” “Senator Coburn,” replied Kagan, “to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.” The full exchange is as follows: Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself? Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively. Coburn: I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is, do you agree with that? Kagan: Senator Coburn, to be honest with you, I don't have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States. Coburn: So you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution that are ours, ours alone, and that a government doesn't give those to us? Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws. Coburn: Well, I understand that. I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that? Kagan: Senator Coburn, I think that the question of what I believe as to what people's rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief. Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says. Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I'm fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States. See Transcript
No, he was not effective A good lawyer litigating a constitutional law case would know what the standards of review are for determining constitutionality (strict scrutiny, intermediate scrutiny, or rational basis review) and have an argument for which one applies. Giuliani appeared to be unfamiliar with these standards. Quoting from an exchange between Giuliani and Judge Brann: Brann: What standard of review should I apply, and why? What standard of review should I apply in this case — Giuliani: On a motion to dismiss? I mean I think the normal one, which is that you, you have to deem the factual allegations to be correct, and even if they are correct, you have to find that there’s no merit, no legal merit, no legal theory on which we can get relief. Brann: Well let me ask you then, are you arguing strict scrutiny should apply here? Giuliani: No, the normal scrutiny should apply. If we had alleged fraud, yes. But this is not a fraud case. Brann: …So if that’s the case, why don’t Secretary Boockvar’s and the counties satisfy the standard of review you’re talking about? If it’s not strict scrutiny, and it’s the standard of review you’re implying, why don’t their actions satisfy this? Giuliani: I’m sorry, I don’t really understand the question, your honor. Brann: Well this is how I would look at it. I would think that it’s a standard of review of strict scrutiny, potentially. You’re not sure that that’s the case. I’m not imposing my — Giuliani: Maybe I don’t understand what you mean by “strict” — Brann: Well, for strict scrutiny to apply, a fundamental right needs to be burdened, as I understand it. So how do the counties or Secretary Boockvar, on behalf of the commonwealth, burden the plaintiffs’ right to vote? How do they burden the right to vote? The judge is basically giving Giuliani the answer here: he's challenging government action, so strict scrutiny would work in his favor, as it imposes the highest burden on the government to justify its action. The judge is even saying that he thinks strict scrutiny may apply. Despite that, Giuliani appears to have no idea what the judge is referring to, and is simply describing the standard for a motion to dismiss. The government's lawyers were prepared for this question, as they should have been, and argued for rational-basis review, which favors the government. Had Giuliani argued competently, there could have been two sides to that argument instead of only one.
The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes).
So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say &quot;Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons.
Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact.
The United States would be one such country. I'm sure it is not the only one. In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want.
My research has turned up no instances of anyone successfully advocating these ideas in court. These are crackpot pseudo-legal theories that have no legal validity whatsoever. And are also a bit troublesome and problematic for the rest of us. They are mostly advocated by people who: don't want to pay taxes or otherwise conform to laws they don't like; are conspiracy-minded; and have come across a pseudo-legal theory that helps them justify their position. For example, an author of this Wikipedia article explains: &quot;Freemen&quot; believe that statute law is a contract, and that individuals can therefore opt out of statute law, choosing instead to live under what they call &quot;common&quot; (case) and &quot;natural&quot; laws. Under their theory, natural laws require only that individuals do not harm others, do not damage the property of others, and do not use &quot;fraud or mischief&quot; in contracts. They say that all people have two parts to their existence – their body and their legal &quot;person&quot;. The latter is represented by the individual's birth certificate; some freemen claim that it is entirely limited to the birth certificate. Under this theory, a &quot;strawman&quot; is created when a birth certificate is issued, and this &quot;strawman&quot; is the entity who is subject to statutory law. The physical self is referred to by a slightly different name – for example &quot;John of the family Smith&quot;, as opposed to &quot;John Smith&quot;. In 2013, the U.S. District Court for the Western District of Washington tried and convicted Kenneth Wayne Leaming for retaliation by making false claims and wrote: Defendant [Kenneth Wayne Leaming] is apparently a member of a group loosely styled &quot;sovereign citizens.&quot; The Court has deduced this from a number of Defendant’s peculiar habits. First, like Mr. Leaming, sovereign citizens are fascinated by capitalization. They appear to believe that capitalizing names has some sort of legal effect. For example, Defendant writes that &quot;the REGISTERED FACTS appearing in the above Paragraph evidence the uncontroverted and uncontrovertible FACTS that the SLAVERY SYSTEMS operated in the names UNITED STATES, United States, UNITED STATES OF AMERICA, and United States of America . . . are terminated nunc pro tunc by public policy, U.C.C. 1-103 . . . .&quot; (Def.’s Mandatory Jud. Not. at 2.) He appears to believe that by capitalizing &quot;United States,&quot; he is referring to a different entity than the federal government. For better or for worse, it’s the same country. Second, sovereign citizens, like Mr. Leaming, love grandiose legalese. &quot;COMES NOW, Kenneth Wayne, born free to the family Leaming, [date of birth redacted], constituent to The People of the State of Washington constituted 1878 and admitted to the union 22 February 1889 by Act of Congress, a Man, &quot;State of Body&quot; competent to be a witness and having First Hand Knowledge of The FACTS . . . .&quot; (Def.’s Mandatory Jud. Not. at 1.) Third, Defendant evinces, like all sovereign citizens, a belief that the federal government is not real and that he does not have to follow the law. Thus, Defendant argues that as a result of the &quot;REGISTERED FACTS,&quot; the &quot;states of body, persons, actors and other parties perpetuating the above captioned transaction(s) [i.e., the Court and prosecutors] are engaged . . . in acts of TREASON, and if unknowingly as victims of TREASON and FRAUD . . . .&quot; (Def.’s Mandatory Jud. Not. at 2.) The Court therefore feels some measure of responsibility to inform Defendant that all the fancy legal-sounding things he has read on the internet are make-believe...... Paper Terrorism One particularly problematic &quot;successful&quot; tactic employed by these individuals is the filing of false liens. They take advantage of the fact that property liens are not vetted prior to being recorded. These false liens illegally cloud the title to real property and adversely affect the sale of property by adding unnecessary time and expense to the process.
States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts).