Free Republic

While our Constitution famously set up a government of divided powers, the powers within each branch are not absolute. Each is subject to various checks from the others. Congress is responsible for lawmaking, but the president has a qualified veto over congressional bills. It is not absolute, for congress may override on two-thirds majority vote. As a theoretical check on the judiciary, scotus is subject to Article III congressionally determined “exceptions . . . and regulations.” Scotus has developed a habit of going far beyond its duty to adjudicate between parties and protect the constitutionality of law. Instead, it often...

Subtitle: Scotus & Morality. Without God and religion you don't have moral truth, you have moral opinion. Unfortunately, when a majority of lawyers on Scotus issue new rights-based opinions, they become binding moral truths; indeed, they are societal commandments. Unlike the Ten Commandments, Scotus’ commandments are compulsory and permanent. Well, they are permanent until a subsequent court determines otherwise. We the People never entrusted this philosophically unmoored and thoroughly political institution with the duty to police morality. It wasn’t always this way. In a constitutional republic the moral content of law is given by the morality of the framer or...

Republican presidential candidate Ben Carson says the United States should rethink the notion that a president must enforce laws the Supreme Court declares constitutional. Carson said Sunday “we need to discuss” the court’s long-held power to review laws passed by Congress. That authority was established in the 1803 landmark case Marbury v. Madison. […] Carson has said a president is obliged to carry out laws passed by Congress, but not what he called “judicial laws” that emanate from courts. …

In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Root’s new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues. I. The role of Judicial Review in Protecting Individual Rights On the question of the effectiveness...

Do you know that the verdict in this case actually limited the Court’s power? Following the loss of the presidency and Congress in the election of 1800, the lame-duck Federalist Congress enacted the Judiciary Act of February 3, 1801, creating 58 new federal judgeships and new circuit courts. Two weeks later, Congress created 42 justices of the peace in the District of Columbia. Chief Justice Oliver Ellsworth resigned, and President John Adams named Secretary of State John Marshall to replace him. The judicial commissions were signed by President Adams, and the Seal of the United States affixed by the Secretary...

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Thomas Jefferson For 200 years the Supreme Court has enjoyed virtually limitless authority to determine the constitutionality of both state and federal legislation. Known as “Judicial Review,” this power to “…invalidate [an executive or legislative] act if it is contrary to constitutional principles,” has made what the Founders believed the weakest of the federal branches into arguably the most powerful. (1) There is no mention of judicial review in the...

I listen to whatever I can in the way of talk radio when I drive around, and Mark Levin is the least unpalatable choice on the drive home from work each day. He was on one of his bulging-neck-vein rants the other day, this one about the history of the Supreme Court’s overstepping their limited Constitutional role over the past several centuries, leading us to the “judicial tyranny” we see now, which was never the intent of the Founders. He implied that the ultimate remedy was the restoration of the original intent of the Founders, rather than merely electing conservative...

President Barack Obama, stung by indications the Supreme Court may overturn his landmark health care law, reacted last week unlike a constitutional scholar, which he was at the University of Chicago, and more like a politician seeking reelection, which he is. The president pronounced: "I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." Mr. Obama appeared to be warning the high court against overturning his signature legislative achievement, by invalidating an act of Congress. But even...

Most lawyers trying a case abide by the maxim: Don’t piss off the judge. President Obama disregarded that when he lectured the Supreme Court not to overturn the health care law. Indirectly the President was challenging the entire judiciary and it struck a raw nerve with Judge Jerry Smith, of the 5th Circuit Appeals Court. Judge Smith had, less than two years earlier rejected, in a 2 to 1 decision, the Interior Department request to stay a lower court order lifting the offshore drilling moratorium (Hornbeck Offshore Services LLC v. Salazar) – thus requiring the moratorium lifted. In one of...

When our president, a, ahem, constitutional scholar, berated the court for having the audacity to consider overturning an unconstitutional law, he implied justices should think twice before doing such an unprecedented thing. Of course, Barack Obama was revealing himself to be anything but a constitutional scholar. A mere appellate court judge got so miffed he ordered the Obama Administration to submit a three-page, single-spaced paper today explaining how judicial review is something the court has the authority to do. So, Eric Holder, who currently holds the position of Attorney General in the admnistration, submitted the letter. Here’s what Holder had...

We are told that it is up to the Supreme Court to determine what laws are constitutional, but that is hardly in line with the limiting principles offered by the U.S. Constitution. That power the courts claim to have is called Judicial Review, and it is addressed nowhere in the Constitution. In fact, the federal courts seized that power for themselves through an opinion written by Justice John Marshall in the Marbury v. Madison case of 1803. Yes, that’s right, the courts gave that power to themselves. By deciding if laws are constitutional, and since the Supreme Court is a...

As the Republican primary season plods along, the opponent the eventual nominee will face is either abandoning all pretext and revealing what "fundamentally transform" really means or spiraling out of control. With the Supreme Court moving toward the likely ruling that his signature legislation is unconstitutional, President Barack Obama has launched a pre-emptive strike against the court and the constitution itself.

President Obama softened his rhetoric Tuesday about the possibility of a Supreme Court decision striking down his healthcare reform law, after Republicans accused him of “threatening” the high court. (Snip) Obama said Tuesday that he would respect the court’s opinion, but still believes the justices should not overturn the healthcare law. “The point I was making is that the Supreme Court is the final say on our Constitution, and all of us have to respect it,” he said. “But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to a duly elected

Now that the House Democrats have rammed ObamaCare down the throats of the nation by a vote of 219-212, the situation is indeed bleak. But Conservatives and Tea Partiers despondent over the fact that liberal Democrats just passed a massive encroachment on our liberties over their massive protests should take hope. James Madison saw this coming, and his forethought will give opponents of ObamaCare one last shot at killing it. In Federalist #10, Madison wrote "Enlightened statesmen will not always be at the helm." (Boy, did he ever get THAT right.) Knowing that the nation's future leaders would include usurpers...

There's a telling personal anecdote in the prologue to the latest book by Pulitzer Prize-winning political scientist James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crises of the Supreme Court. The scene is 1937 and Burns is a wide-eyed Williams College undergraduate upset at the Supreme Court for thwarting the will of his beloved President Franklin D. Roosevelt. "How could these justices," he writes in the voice of outraged youth, "most of whom had been appointed to the Supreme Court decades earlier, paralyze a government twice elected by a huge majority of Americans and...

In the comments to yesterday's jury nullification piece (yes, I read your comments) Smitty was especially on-point when he said, "The real problem might be toleration, or more accurately, the lack of it. We wish our preferred freedoms to be respected, while applauding governmental crackdowns upon those freedoms we dislike or are indifferent to." Frankly that's been an ongoing hurdle in the effort to preserve and extend liberty. Until pot-smokers and gun owners and low-taxers and sexual minorities recognize that liberty is indivisible and that we're all in this together, we're going to be picked off piecemeal by government officials...

The Supreme Court’s Business Cases Reviewed by: Irene Warren, November 06, 2008 The American Enterprise Institute (AEI) for Public Policy Research Legal Center hosted its annual review of the U.S. Supreme Court’s 2007-2008 October term recently, and to mull over its regulatory framework of prime business cases, which make up the bulk of its civil lawsuits. “Recent regulatory and financial crises bring increased urgency to the examination of the justices’ future course,” as AEI pointed out. “Will Congress and the Executive finally create a stable regulatory framework, or will there be uncontrolled litigation and regulation over past misconduct, real and...

The Judge Steps Out by: Irene Warren, November 03, 2008 In this year’s vice-presidential debate, millions of Americans got to see U. S. Sen. Joseph Biden, D-Del., explain what he is looking for in a Supreme Court Justice. As chairman of the Senate Judiciary Committee, he gets to act on these convictions whenever a president nominates a candidate for one of the nine seats on the highest court in the land. As a long-time member of that committee, Sen. Biden has grilled many Supreme Court nominees, such as Robert Bork, whose nomination President Ronald Reagan sent to the Senate in...

Original Intent for All by: Irene Warren, September 17, 2008 Although conservatives generally embrace the original intent of the U.S. Constitution, while liberals see it as a living document, one legal scholar points out that a liberal read of the document constrains both left and right, while an interpretive one lends itself to exploitation by such political factions. “When liberated from the original meaning of the Constitution, both left and right became free to use the courts, both to pursue their political agendas and to obstruct the political agendas of their opponents,” said Randy Barnett, a professor at Georgetown University...

...courts deserve criticism when they exercise legislative or executive powers....But better to call this behavior what it really is, which is not "activism" but lawlessness. By contrast, judicial activism -- defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries -- is essential to protecting individual liberty and the rule of law. Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution....Liberal critics cite statistics showing that the Supreme Court under Chief Justice William Rehnquist was more activist in invalidating federal laws than any...