Posted on 03/10/2005 11:32:33 AM PST by Del Rio Wildcat 2
2. ORIGINAL INTENT: THE FRAMERS DID NOT INTEND THE SUPREME COURT TO BE THE ULTIMATE ARBITER OF ALL CONSTITUTIONAL ISSUES. The doctrine of original intent holds that the legislature--not the judiciary--is the "predominant" branch5; that the judiciary was the "weakest" of the three branches of government.6 To the Founders, the opinion that the Supreme Court was the ultimate arbiter of all constitutional issues was "never proper,"7 and a "dangerous doctrine"8 which would lead to the judiciary becoming a "despotic branch."9 They were concerned that the federal judiciary would usurp all the powers from the States.10 This was the system of checks and balances implemented in the Constitution. Recall the Dred Scott decision in 185711 wherein the Supreme Court held that "a man of African descent, whether a slave or not, was not and could not...
3. ORIGINAL INTENT: THE FIRST AMENDMENT AND THE METAPHORICAL "WALL OF SEPARATION BETWEEN CHURCH AND STATE"
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . " The Congressional Records from June to September, 1789 record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, during those debates not one of the framers ever mentioned the now infamous phrase "separation of church and state." The phrase, "separation of church and state" is not found in the U.S. Constitution, the First Amendment, nor any of the notes from the Constitutional Convention. In fact, the current application of the "separation" doctrine is a relatively recent concept rather than the enforcement of a long-held constitutional principle...
(Excerpt) Read more at earlyamerica.com ...
BTW, I highly recommend Mark Levin's book, Men in Black. Every FReeper should read it.
I'll see your BTTT (in the poker sense, of course) and raise you a PING
No wonder they were so eager to accept Marbury v. Madison. They realized how much power that decision would bestow on them.
It's a living document that should include world opinion, but not that of the writers.
August 15, 1789. Mr. [Peter] Sylvester [of New York] had some doubts...He feared it [the First Amendment] might be thought to have a tendency to abolish religion altogether...Mr. [Elbridge] Gerry [of Massachusetts] said it would read better if it was that "no religious doctrine shall be established by law."...Mr. [James] Madison [of Virginia] said he apprehended the meaning of the words to be, that "Congress should not establish a religion, and enforce the legal observation of it by law."...[T]he State[s]...seemed to entertain an opinion that under the clause of the Constitution...it enabled them [Congress] to make laws of such a nature as might...establish a national religion; to prevent these effects he presumed the amendment was intended...Mr. Madison thought if the word "National" was inserted before religion, it would satisfy the minds of honorable gentlemen...He thought if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent. (Debates and Proceedings in the Congress of the United States (Washington D.C.: Gales & Seaton, 1834, Vol. I pp. 757-759, August 15, 1789)
Now, read this and weao you lying anti-christian bigots who suppose and invent "separation of church and state" and stop inferring it meant anything else than what it CLEARLY means.
Mark Levin got mad at me, accusing me of being an agent of Mike Savage, on another thread.
I saw him on CSPAN last weekend and he was great though!
"No wonder they were so eager to accept Marbury v. Madison. They realized how much power that decision would bestow on them."
It was altogether less august and calculated than that, and more petty and political.
In 1800, America experienced a revolution - probably the most important step on the way to our form of government. The party in control since the Revolutionary War, the Federalists, lost power to Jefferson and his Democratic Republicans.
And the transition was peaceful.
But John Marshall, who had been a high official of the Adams Federalist government, moved over into the Chief Justice role, and the Federalists made every effort to pack the courts and all other government offices at all levels with Federalists. Marbury was one of those midnight appointees, rushed into office by the departing Federalists to ensure their lock on the government.
Jefferson and his cabinet refused to give the orders to let these last-second appointees take office, and instead sought to put in their own people. It was a classic turf fight.
The issue came to the Supreme Court, and there say John Marshall, who a year and some months prior had been the guy making the appointments in the first place, opining on whether or not Jefferson and his party, who had beaten Marshall's party in the election, had to seat the Federalist officials.
Guess how Marshall ruled.
And guess how angry Thomas Jefferson was!
Marshall was smart enough to make the ruling that the Courts could review the act and order the seating of the officials, but then to call the situation moot because of circumstances. In other words, he declared a doctrine of judicial review being able to override the President and Congress, but then he found that in the circumstances it could not be effectively applied to put the particular plaintiff, Marbury, in office. Had Marshall attempted to force the full Monty and not only overturn the new President and Congress, but seat the official, he might have been defied. Had that happened, judicial review may have died aborning.
But as it was, Marshall wrote an opinion that asserted vast powers, but then sidestepped applying them in the particular case in a way that would have allowed his political foes, Jefferson and the Democrat-Republicans, to demonstrate that Marshall's Court DIDN'T have that sort of power.
What we see today as a grand cornerstone of our legal tradition was, in truth, a gutter fight over party patronage and the spoils system, and completely political when it was issued.
"The people's eyes should be shielded from what goes into making laws and sausages." - Otto von Bismarck
Which is why Congress has so much power, now rarely exercised, over the judiciary. The Constitution only gives original jurisdiction to the Supreme Court in a few cases, and it's generally not on those cases where the Court has gone so overboard.
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.This complaining about judcial power is useless. Complain to Congress to use the power given to them by those who distrusted the judiciary.
Unfortunately, less than 100 years later, Abraham Lincoln and the Civil War did just that.
Congressman Billybob
My understanding is that original intent refers to what was in the minds of the framers of the constitution in Philadelphia in 1787. This strikes me as unknowable. (I think Robert Bork's confirmation hearings was the genesis of my understanding here.)
I used to argue strict construction of the words contained in the US Constitution.
These days I think we live in a post-constitutional environment where words on parchment cannot effectively limit the state.
"This complaining about judcial power is useless. Complain to Congress to use the power given to them by those who distrusted the judiciary."
This would set up a classic confrontation, because the Supreme Court would, of course, strike down as unconstitutional anything Congress passed that purported to restrict the Supreme Court's power of CONSTITUTIONAL review.
And then you'd have a classic stalemate, whose outcome would depend on whether or not the President ordered the Justice Department and other Federal agencies to obey the Court orders or not (and whether the Federal agencies obeyed the President's order or not).
Probably the juniors in the Executive Branch would obey the White House.
What the People thought of all of those power plays would be registered in the following election!
"Do you have a source for your quote?"
Not one that I can put my finger on. I read it long ago somewhere and remembered it, because I'd heard the "laws and sausages" bit before, but had never realized that the source was Bismarck. But it's been so long since I read that, I cannot remember the source. Some book. Probably the book got it wrong, or was paraphrasing, and you've probably got the actual quote there.
So what gives courts the right to establish ATHEISM as the one and only religion which may be expressed in a political setting?
Bump for later read.
And Bismark was right.
Thanks for the historical perspective, as it's been awhile since I opened my Con Law book. The average person would see the entire concept of "judicial review" as you put it "august and calculated" when in fact it was as petty as can be.
Now we've gone way downhill, with a letter to the Danbury Baptist Church somehow superseding the First Amendment and Judicial Review morph into legislating from the bench. (I reside in the Ninth Circuit - they live to strike down voting results they don't like and always, but always to side with felons and illegal aliens.)
Two questions:
BTW, bald is not a hair color.
And Bismark was right.
Thanks for the historical perspective, as it's been awhile since I opened my Con Law book. The average person would see the entire concept of "judicial review" as you put it "august and calculated" when in fact it was as petty as can be.
Now we've gone way downhill, with a letter to the Danbury Baptist Church somehow superseding the First Amendment and Judicial Review morph into legislating from the bench. (I reside in the Ninth Circuit - they live to strike down voting results they don't like and always, but always to side with felons and illegal aliens.)
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