Posted on 07/09/2005 3:15:41 PM PDT by 1stFreedom
Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review.
Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison.
Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception.
The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did.
A "strict constructionist" who adheres to Marbury v. Madison and the flawed principle of stare decisis (doctrine of precedent/settled law) won't do any good for the nation. It doesn't matter if George Bush were to fill the court with nine "strict constructionists" if they accepted stare decisis and Marbury V. Madison.
If you want to take the courts back from judicial tyrants, it's time to call for justices who won't be bound by terrible precedent and who recognize the authority of Congress and the inability of the court to rule on congressional legislation.
It's time to call for nominees who refuse to be bound by illicit precedents and illicit power grabs. Now is the window of opportunity to fix the courts, and it will take much more than nominees whose only qualification is that they are a "strict constructionist."
It's essential that you call your Senators and the White House Monday to demand nomination and approval of nominess who reject both Marbury V. Madison and "stare decisis".
The problem is that we must judge ourselves. People have made as many claims about what the authority above the law (if such exists) says as about what the law says.
I prefer to look at the law as part of a system which controls the power of the state. Our way of doing things has been judged by history to be extremely good compared to other ways. Whether it will continue to be so, whether we can adapt to whatever new circumstances we must face, is always unknown.
Marshall never said that the Constitution was not subject to amendment, any amendment.
Clause one supercedes and gives both primary jurisdiction and the fundamental powers. They are given w/o exception, or limit, including infringement by Congress. Clause 2 involves other powers and tasks.
That is a new one for me. Have a link?
Who cares? It's nonsense.
The founders intended that the people would be the soveriegn in the Republic they were creating. As such the final arbiter on the meaning of the constitution would be the public. The court assumed this power for itself in the case of Marybury vs Madison. However in reality its hold on this power has always been tenuous because the power does not legitmately belong to them and it can only be maintained through the acquiesce of the public. If the court steps over the line (as it has in the past) the court threatens its very existence. A good example of this happening in the past would be after the infamous dred scott decision the courts ruling were generally ignored by the Lincoln Administration. The Lincoln Adminstration was able to act in this manner because of the state of crisis that existed and because the public had lost faith in the court. The courts main power rests on the need for a neutral party to settle disputes in our political system. When the court acts in a manner that shows a political bias the court endangers this authority. As such there is no need to overturn Marybury v. Madison. The court in recent years has gone a long way to achieve this goal by itself.
Because you're a fellow cheesehead, I'll go easy on you. Just answer me this: To what do you think the words, "In all other Cases before mentioned," in the second sentence of Clause 2 refer?
Forward!
The problem is that we must judge ourselves. People have made as many claims about what the authority above the law (if such exists) says as about what the law says.
You are correct in that humans are stuck on earth with nothing but other humans to justify and provide earthly judgement. But to rephrase Blackstone's presumption - there is an authority that most of the people SUBSRCIBE TO, outside of the law. In that context, making law is relatively easy.
My belief is that civilizations that believe and act as though they are the final authority in defining right from wrong are not durable.
****It would seem a case of Civil War would be an exception that proves the rule. But the SC has the final authority to interpret the Constitution. That means they win the argument. There are bad decisions just like there are bad laws and bad Presidential appointments. The Republic gets by.
I don't think it was for that reason and I may be wrong about Lincoln. I thought I had read it somewhere and will try to find. I did find an article with another example in it.
Jackson in 1932. I found this part in the article interesting. Thoughts?
"But what Hamilton is writing about is the lesser known check of the President over the Supreme Court as outlined in Articles II and III of the Constitution. The Supreme Court is dependent upon the Executive Branch, as is the Congress, to "execute" their wishes. Nothing gets done unless the President agrees."
http://www.renewamerica.us/columns/darr/050324
The principles underlying the Constitution are not law and are frequently ignored. Freedom is abandoned for socialism and it's collection of entitlements, imaginary rights and other nonsense. There is little to nothing in the Constitution protecting the principles underlying the doc. In fact everything you do of consequence today is a friggin' licensed priveledge and not honored as a right. You can't even fix your damn toilet w/o a license, certified and accepted plans, and a friggin' permit. Come election time, you'll have to hire a lawyer and a team of bureaucrats to speak out and be heard, to make sure the jackboots don't end up with justification to toss yer butt in the dungeon.
"Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th."
There's no limit whatsoever to what mads can be made. Once they're made, they're in the Constitution and supercede whatever was there prior to that. The Amendment overrules, or adds to prior entries. That's why it's called amending.
Me
I don't think it was for that reason and I may be wrong about Lincoln. I thought I had read it somewhere and will try to find. I did find an article with another example in it.
See post 149.
And if the new "content" makes the previous "interpretation" impossible, then it affects the interpretation as well.
And if the new content makes the current interpretation impossible, it also changes the interpretation as well. Borges is wrong.
And the word is "moot", not "mute". Mute is someone unable to speak.
Well then I guess our greatest lawyers are both.
Societies are complex indeed. I believe there is a spiritual battle going on as well, a literal battle over our souls.
I think all human endeavors are flawed. After all, we are human ;-)
Wrong. Amendments can change any aspect of the Constitution. There are no limitations on the amendment process.
"Marshall said as much in M v M, -- that any law 'repugnant', - is null & void."
A Constitutional Amendment is not a "law". It is a completely different animal.
"Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th."
Nope, 'fraid not. Amendments trump the SCOTUS, hands down.
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