Posted on 11/04/2003 10:08:00 PM PST by JohnHuang2
You're right, these labels can be very deceptive, particularly in an historical sense.
I would guess, for example, that most historians, if they were forced to label Chief Justice Marshall and Jefferson as liberal or conservative, would label Marshall (along with Washington and Hamilton) as conservative and Jefferson as being more liberal. And, as it turns out, Washington, Hamilton and Marshall were the ones who favored a strong central government and Jefferson seemed to prefer a much weaker one.
In fact, I think that the biggest boost that the Federal government got was when Washington sided with Hamilton as to the interpretation to be given to the "necessary and proper" clause. Jefferson was on the other side of that one, arguing for a more restrictive interpretation. Ultimately, Chief Justice Marshall more or less adopted Hamilton's argument in McCulloch v. Maryland and Congress was off to the races. ;-)
Of course I do. Most of the time, anyway. ;-)
Or are you too dense to be aware of doing so? Which is it?
Those are my choices? You're just too generous with me, tpaine! ;-)
I think you think we disagree with one another on whether the Constitution contains express authority to the Supreme Court to hold an act of Congress unconstitutional. I'm not suggesting that an argument for judicial review cannot be constructed. That is, after all, what Chief Justice Marshall did in the Marbury case and so it would be impossible for me to deny that it can be done.
On the other hand, I do not think that Chief Justice Marshall's argument in favor of his Court's power to declare acts of Congress unconstitutional was the only possible way of reading the Constitution. As I pointed out, Jefferson disagreed with Marshall on that.
And my point has only been that, whether he was right or wrong about Marbury, I think that the Court would be more comfortable about striking down Congressional legislation if the Constitution more clearly and expressly authorized the Court to do so.
Now, then, what specifically do you think that we actually disagree about here? ;-)
Ah yes, -- you disagree with Marshall, but agree that he made a good case. What else is new?
On the other hand, I do not think that Chief Justice Marshall's argument in favor of his Court's power to declare acts of Congress unconstitutional was the only possible way of reading the Constitution. As I pointed out, Jefferson disagreed with Marshall on that.
You 'pointed out' some out of context Jefferson quotes & comments on them that support your opinions.
And my point has only been that, whether he was right or wrong about Marbury, I think that the Court would be more comfortable about striking down Congressional legislation if the Constitution more clearly and expressly authorized the Court to do so.
You made that point & I answered. You did not rebut, you diverted.
Now, then, what specifically do you think that we actually disagree about here?
At 229, I wrote: How can you ignore the clear words of Art III, Sec 2 ?
It outlines where the Supreme Court is to find the Constitutional delegation of power and authority to judge "the facts & THE LAW" in all cases "arising under this constitution".
Pretty specific words to my 'non-lawyerly' way of thinking.
First, the Court could very well decide all of its cases without inquiring into the constitutionality of an act of Congress. The fact that it is required to decide cases in accordance with the law does not necessarily mean that it is also required that the Court question the constitutional decision by Congress that it had the power to pass the law.
Second, even if it is assumed that the Supreme Court has the power to consider the constitutionality of a federal law in deciding a case before it, that does not necessarily require that the law be deemed of no effect in other cases or in other settings.
So, those were two of the other alternative ways in which Marshall could have interpreted the role of the Court in deciding cases. As we know, he didn't and there was more than a little controversy about his decision at the time.
At 229, I wrote:
How can you ignore the clear words of Art III, Sec 2 ?
It outlines where the Supreme Court is to find the Constitutional delegation of power and authority to judge "the facts & THE LAW" in all cases "arising under this constitution".
Pretty specific words to my 'non-lawyerly' way of thinking.
First, the Court could very well decide all of its cases without inquiring into the constitutionality of an act of Congress. The fact that it is required to decide cases in accordance with the law does not necessarily mean that it is also required that the Court question the constitutional decision by Congress that it had the power to pass the law.
If the law in question is repugnant to the constitution, the USSC is honor bound to obey their oaths, and strike down such infringements. You should know that..
Second, even if it is assumed that the Supreme Court has the power to consider the constitutionality of a federal law in deciding a case before it, that does not necessarily require that the law be deemed of no effect in other cases or in other settings.
You raise a point not at issue. Why? Is it diversionary?
So, those were two of the other alternative ways in which Marshall could have interpreted the role of the Court in deciding cases. As we know, he didn't and there was more than a little controversy about his decision at the time.
Sure. It was controversial to those who wanted states to have powers over individual rights.. So what? Didn't we resolve that issue yet?
Why is it you can't agree that the SCOTUS has the power and authority to judge "the facts & THE LAW" in all cases "arising under this constitution"?
I accept the result in Marbury, tpaine. But, the fact that I accept the decision does not prevent me from recognizing that it could have very reasonably been decided in other ways. The Supreme Court decided it the way it decided it and it has gained acceptance through time. So, I accept it as an important part of our Constitutional fabric.
This particular thread also concerns all those other Supreme Court decisions that have held that Congress has very broad (nearly unlimited) powers to legislate under the commerce clause. I can think of other ways the Court could have decided those cases, too, but those decisions have also gained general acceptance over time. In the same sense that I must accept Marbury, I guess I also need to just accept those other Supreme Court decisions as well. ;-)
Well, I provided two other ways that the Supreme Court could have approached Marbury in post 247. In another post, I linked you to a page full of Jefferson's views on the matter.
How could our individual rights be protected against legislative infringments if we had no USSC legal appeal?
The President's veto power. Elections. ;-)
Well, I provided two other ways that the Supreme Court could have approached Marbury in post 247.
Both if which I rebuted at 248, and you dropped.
In another post, I linked you to a page full of Jefferson's views on the matter.
Out of context 'views' are not definitive.
How could our individual rights be protected against legislative infringments if we had no USSC legal appeal?
The President's veto power. Elections.
Both of which currently 'work', to a very poor degree.
Sorry kid, I'll still stick with advocating that we obey our constitution as written. We continue to need nine old farts to occasionally strike down the more outrageous infringements on our personal liberties.
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