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To: wagglebee
Actually, Raoul Berger makes a pretty convincing case that judicial review is constitutional in Congress vs the Supreme Court. However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

However, there is also a strong argument that the fact that all officers of state and federal government take an oath to uphold the Constitution, that they have an implied right to interpret the Constitution. After all ,what would happen if the SOTUS wunderkinds decided one day to decide slavery was constitutional again (see Dred Scot) then would state officials really have to swallow that tripe?
10 posted on 07/12/2004 8:32:30 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: asmith92008

The right of the Federal judiciary to strike down Federal laws that violate the Constitution is inherent in the very concept of the judiciary which was understood as part of the evolution of our jurisprudence during the pre-revolutionary colonial period. See Judicial Supremacy in America: Its Colonial and Constitutional History by R. Carter Pittman (who incidentally was notorious for his defense of States' Rights.)

The real issue here concerns the extent of the Supreme Court's authority in adjudicating between a State and her citizens. Article III, Sect. 2 gives the Federal courts authority over "Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Notice that the Federal courts are nowhere given authority in controversies between a State and citizens of that same State. Once a state citizen has appealed to the State's highest court, there is no further recourse provided under the Constitution. Period.

The Incorporation Doctrine, far more than Marbury v. Madison, is an example of the Supreme Court seizing power over the States totally on its own caprice, with neither the States nor the people having had any say in that matter. Frankly, any attempt to curb the Incorporation Doctrine would be insufficient, even if it could be done. The Fourteenth Amendment must be repealed in toto.

18 posted on 07/12/2004 11:28:59 PM PDT by MrLeFevre
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To: asmith92008
However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

Incorporation is explicitly within the original intent of the Fourteenth Amendment:

Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States. Those eight amendments are as follows: [text of Amendments I-VIII] These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment.
The courts have erred in creating a doctrine of selective incorporation in order to weasel out of (for example) requiring the states to respect the right to keep and bear arms (the drafters of the Fourteenth Amendment were quite clear in stating that one of their objectives was to prohibit the ex-rebel states from disarming the freedmen).
23 posted on 07/13/2004 6:44:32 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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