Posted on 09/25/2010 5:55:09 PM PDT by Jacquerie
You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.
Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ampliare jurisdictionem, '' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.
Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department.
When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves ; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion. My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other. I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion.
Accept the assurance of my great respect.
(Ltr to William Charles Jarvis, 28 Sep 1820)
For instance in case law, the dicta of the decision could explain liberty as follows: Ex parte Virginia, 100 U.S. 366.: “By ‘liberty,’ as thus used, is meant something more than freedom from physical restraint or imprisonment. It means freedom, not merely to go wherever one may choose, but to do such acts as he may judge best for his interest not inconsistent with the equal rights of others; that is, to follow such pursuits as may be best adapted to his faculties, and which will give to him the highest enjoyment....”
If you ask it, of course it will say it is.
I contend that the courts have no power to force the acceptance of open homosexuals in our Armed Forces. The President is CIC and under Article I, Section 8, Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces."
What say you?
In a letter, and certainly with no intent to educate the public at large, Jefferson deals with a problem that has nearly overwhelmed our late republic. Our federal courts have assumed legislative and executive powers and deigned themselves to be superior to the other branches.
I have an incredibly hard time believing that any lawyer trying to get open carry allowed on university campuses would fail to mention the state constitution. If they did, I hope their client sued them for it.
And even still there is a place for case law and precedence where the law is not as explicit. Or there are jurisdictional issues for the court. Then the precedence is all there is.
Yes indeed. And the officers of the other branches allow it.
Again, the Republican Party and the legal profession are rotted clear through with judicial supremacists.
And because of it, the courts are deemed to be king, lawgiver, and judge.
This is the death of republican representative self-government.
"It is emphatically the duty of the Judicial Department to say what the law is." - Marbury v. Madison.
Uhmmm...you might want to read the next sentence.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
You do understand the difference between a claim to have all power to say what the law is generally and the power to say what the law is in particular cases, don't you?
...
In order to decide the case, the Supreme Court had to decide whether it should defer to Congress's interpretation of the Constitution and find for Marbury or whether it should instead deem its own interpretation to be superior to the interpretation of Congress and enforce its own interpretation instead.
The Supreme Court decided that its interpretation of the Constitution should be supreme and take priority over the contrary interpretation of Congress. That is what Jefferson was complaining about. Jefferson believed that the Supreme Court should defer to Congress (an elected branch) as to the consitutionality of the Judiciary Act of 1789.
Keep in mind that Roe v. Wade was also just a "particular case."
This is from RightWing News May 2010
Gov Christie to NJ Supreme Court Justice: You’re Fired!
Christie is taking an extremely unusual measure for this day and age. He’s firing one of New Jersey’s Supreme Court Justices and appointing one of his own, one that will closer follow a more conservative path.
Interesting reference & discussion re: Andrew Jackson and SCOTUS:
“... President Andrew Jackson. In 1832 the U.S. Supreme Court issued a decision in Worcester v. Georgia that Old Hickory wasn’t too happy with. In reply he is famous for the sentiment that the Court made its decision and proposed that “now let them enforce it.”*
[Quote: “the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”]
http://rightwingnews.com/2010/05/gov-christie-to-nj-supreme-court-justice-youre-fired/
TENNESSEE CONSTITUTION - ARTICLE I. DECLARATION OF RIGHTS
§ 2. Doctrine of non-resistance
That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
Sometimes you can see portions of the classical American mindset [rather than the slavish Stockholm-syndrome mindset] in legal documents....
In terms of the power of the Supreme Court to question the constitutionality of legislative acts, nothing has changed since Marbury was decided. Jefferson opposed Marshall's claim of such judicial power then and there are some who continue to oppose that claim today.
Marbury didn’t change a single thing constitutionally. It’s only in modern times that the strange destructive doctrine of judicial supremacy has taken hold.
The courts can question the constitutionality of legislation until the cows come home, but it only matters if the legislative branch accedes to the judiciary’s claims, and much more importantly, if the EXECUTIVE BRANCH is willing to enforce their opinions.
After all, the latter is the only branch that is constitutionally empowered to enforce the laws.
Every officer of American governance, in every branch, at every level, has a sworn duty to correctly interpret and then act upon the supreme law of the land, the Constitution.
In Marbury, Marshall did not argue for judicial supremacy. He simply asserted the court’s authority, and duty, to follow the Constitution.
And John Marshall quite obviously understood that the other branches had the exact same duty to fulfill. He quite emphatically WAS NOT a judicial supremacist.
Great para from the column:
“We need to see legislators exhibit a more adversarial relationship with the courts. You see, it wasn't supposed to be that the courts ruled all they surveyed. Our system has been warped into imagining that the courts are the final word on everything. This was not supposed to be the way it worked. Courts were merely meant to read the law and adjudicate cases accordingly. And if a court ruled something un-constitutional, then it was then back in the legislature's court to write a law that is Constitutional. Unfortunately, we've lost the idea that the legislatures and executives of our political system are supposed to fulfill their own roles as leaders and lawmakers. Unfortunately, they've all too often abdicated roles to the often unelected and unaccountable courts.”
And there is the rub. The states and three branches early on were protective of their powers and would slap down encroachments when possible. Today, I'd bet that 99% of Americans believe we must accept whatever a d@mn judge decides.
Yep. That’s the poison they’ve been fed.
One of the primary reasons the republic is dying.
Or not, if the legislators disagree with the court's opinion in that particular case.
That reminds me why citation of foreign law by a federal judge should be immediate grounds for impeachment. If a blackrobe wishes to wander away from our federal constitution, there are 50 (57 according Hussein Himself) American states grounded in our collective traditions and freedoms from which to pick and choose.
>I’ve scanned a lot of state constitutions. Their preambles are occasionally near word for word copies of the federal; all are expressions of our liberties.
Indeed so, the reason I chose that particular portion of TN’s Constitution was that it “jumped out” at me while I was commenting on a gun-seizure incident in TN (as I like to cite things from the constitution of the state something like that happens in to support my claims).
The Scotus is supreme among courts. It does not exercise supremacy over the other two branches and states.
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