Posted on 11/02/2004 11:20:24 AM PST by tpaine
Marbury v. Madison had nothing to do with amending the Constitution.
You're nitpicking. We are discussing the basis for unconstitutional laws. Amendments are laws.
Roe wasn't based on 14th Amendment due process. It was based on emanations of penumbras of privacy rights made up out of wholecloth in Griswold v. Connecticut.
Wrong. -- As the second Justice Harlan recognized:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."
You have an interesting, perhaps unique, view on the limits of Constitutional amendment.
Your 'Abortion Amendment' idea is more 'unique' than anything Ive seen lately.
Do you really think we can amend away our basic rights? Could we outlaw guns by repealing the 2nd amendment, for instance?
Certainly the Constitution itself contains no such limits as you suggest. Nor has any Supreme Court (or any other US court that I am aware of) ever opined that such a limitation exists. But hey, we're all entitled to our opinions.
Yep, and your opinion that abortion can be prohibited from conception is 'far out': -- while my opinion, that it can be reasonably regulated, conforms with our Constitution.
Of course if both Houses of Congress voted by 2/3rds supermajorities and 3/4ths of the States agreed, we could eliminate the 2nd Amendment and gun rights, or the First Amendment, or any other rights or structures, except for the equal Senate, which requires unanimous agreement among the States to change.
Now, are any of those things likely to happen?
No.
Nor is my approach to Roe likely to ever become the law of the land. I think it should, but I am not 5 Supremes, or 2/3rds and 3/4ths.
However, if 5 Supremes do say something is the law of the land, then it's the law of the land until they're overturned. And if the Constitution is amended to state something, whatever that thing is - including the abolition of all gun rights - is the law of the land until that thing is overturned.
Query: Before the 13th Amendment, was human slavery legal and constitutional in the United States?
Of course if both Houses of Congress voted by 2/3rds supermajorities and 3/4ths of the States agreed, we could eliminate the 2nd Amendment and gun rights,
Bizarre theory. We the people established our Constitutional contract to "secure the Blessings of Liberty". You opine that we can destroy portions of our Liberty without voiding the Constitutional contract. Not so. Amendments repugnant to liberty are null & void.
or the First Amendment, or any other rights or structures, except for the equal Senate, which requires unanimous agreement among the States to change. Now, are any of those things likely to happen?
No. Nor is my approach to Roe likely to ever become the law of the land. I think it should, but I am not 5 Supremes, or 2/3rds and 3/4ths.
However, if 5 Supremes do say something is the law of the land, then it's the law of the land until they're overturned.
Simply not so. The USSC has no such enumerated power. -- Read the 10th.
And if the Constitution is amended to state something, whatever that thing is - including the abolition of all gun rights - is the law of the land until that thing is overturned.
The government found out that booze prohibition was not the 'Law of the Land', and never was. -- That's why it was repealed. Civil disobedience works.
Query: Before the 13th Amendment, was human slavery legal and constitutional in the United States?
It was grandfathered in as 'legal'.
Constitutional? -- In effect, Art V's reference to '1808' admits that the founders expected slavery to be either be amended out of existence and/or be found unconstitutional, -- at some point.
Under your theory, we could reinstate human bondage. - Good idea. could we start by enslaving all the lawyers & bureaucrats?
Well, actually under your theory human bondage never existed in America, because it was a privation of basic rights.
But in fact, it did exist in America, and required a Civil War and then another good century or so of political and legal struggle to bring to heel.
Now, as to things being "null and void" because they violate concepts of rights, that's just not so. To amend the Constitution in the first place takes such heavy majorities that there is a lot of popular might behind the project. Of course people can just disobey the laws, until they get caught and punished, but even in the case of Prohibition, which you cite, thousands upon thousands of people spent a lot of time in jail and were fined millions of dollars for breaking the law. And they were not released from prison just because the People amended the Constitution again to repeal the Prohibition Amendment.
Try telling them that there was no law there in the first place!
When you say "We the people..." and "Amendments repugnant to liberty are null and void...", the problem is the definition of the terms. Who decides who "the People" is? Who decides whether an amendment is "repugnant to liberty"? Each individual himself? The mayor of San Francisco tried that with gay marriage, and got slapped down, because that is not the way it works.
The US has no specifically enumerated power of judicial review in the Constitution. That is certainly true. On the other hand, it has jurisdiction over all cases in law and equity, under the constitution. So, what happens when another branch of government breaks the law? Above, you've asserted a theory that amounts to every individual deciding for himself what the law is. Obviously it doesn't really work like that in the real world. Just as obviously, since Marbury v. Madison it has been the Supreme Court that has played the role of final arbiter of what the Constitution says. The Founders themselves: Jefferson, Madison, Adams, Marshall etc. were all involved in that case. The Founding Fathers themselves wrote, in Marbury, that the Supreme Court had that power, and the other Founding Fathers did not forcibly step forward and deny it. Marbury was not an act of the later generations, but was an act of the same people who wrote and ratified the Constitution. Evidently THEY thought that the system they had just made allowed for the Supreme Court to do this, because Marbury stood as good law from the founding generation until today.
So, while I understand the frustration with judicial review, because it is not specifically described in the Constitution, it certainly is part of the Constitutional structure that has evolved. There is no walking that cat back. I guess what it comes down to is that the Constitution is simply not like the King James Bible in the hands of a Protestant, with each man as his own interpreter, but is a whole lot more like the Vulgate in the hands of the Roman Curia, with identified, strong institutions as its interpreter. One can argue that it SHOULD not be that way, but it most certainly IS that way in the real world, and the might of the state will certainly back up the traditional power of the Supreme Court to decide what the Constitution says.
Simply not so. The USSC has no such enumerated power. -- Read the 10th.
And if the Constitution is amended to state something, whatever that thing is - including the abolition of all gun rights - is the law of the land until that thing is overturned.
The government found out that booze prohibition was not the 'Law of the Land', and never was. -- That's why it was repealed. Civil disobedience works.
Query: Before the 13th Amendment, was human slavery legal and constitutional in the United States?
It was grandfathered in as 'legal'.
Constitutional? -- In effect, Art V's reference to '1808' admits that the founders expected slavery to be either be amended out of existence and/or be found unconstitutional, -- at some point.
Well, actually under your theory human bondage never existed in America, because it was a privation of basic rights.
I have no such theory, and you know it. You're playing wordgames with what I've posted here. Bad ploy.
But in fact, it did exist in America, and required a Civil War and then another good century or so of political and legal struggle to bring to heel.
You asked a question, got my answer, and are now preaching to the choir instead of making an honest rebuttal. Silly ploy.
Now, as to things being "null and void" because they violate concepts of rights, that's just not so.
Preach on.
To amend the Constitution in the first place takes such heavy majorities that there is a lot of popular might behind the project.
Majority will triumphs? Get real.
Of course people can just disobey the laws, until they get caught and punished, but even in the case of Prohibition, which you cite, thousands upon thousands of people spent a lot of time in jail and were fined millions of dollars for breaking the law. And they were not released from prison just because the People amended the Constitution again to repeal the Prohibition Amendment. Try telling them that there was no law there in the first place!
You do it, -- its your straw man.
When you say "We the people..." and "Amendments repugnant to liberty are null and void...", the problem is the definition of the terms. Who decides who "the People" is? Who decides whether an amendment is "repugnant to liberty"? Each individual himself?
In effect, yes. Civil disobedience [even by a minority faction] works in a free republic.
The mayor of San Francisco tried that with gay marriage, and got slapped down, because that is not the way it works.
He was slapped down because he was acting beyond his power.
The US has no specifically enumerated power of judicial review in the Constitution. That is certainly true.
Thanks for your refreshing honesty.
On the other hand, it has jurisdiction over all cases in law and equity, under the constitution. So, what happens when another branch of government breaks the law?
It issues an opinion, one that may or may not be accepted. Checks & balances, remember?
Above, you've asserted a theory that amounts to every individual deciding for himself what the law is. Obviously it doesn't really work like that in the real world.
Obviously, -- it did with booze prohibition.
Just as obviously, since Marbury v. Madison it has been the Supreme Court that has played the role of final arbiter of what the Constitution says. The Founders themselves: Jefferson, Madison, Adams, Marshall etc. were all involved in that case. The Founding Fathers themselves wrote, in Marbury, that the Supreme Court had that power, and the other Founding Fathers did not forcibly step forward and deny it. Marbury was not an act of the later generations, but was an act of the same people who wrote and ratified the Constitution. Evidently THEY thought that the system they had just made allowed for the Supreme Court to do this, because Marbury stood as good law from the founding generation until today.
"Do this"? Do what? Marshal opined, everyone accepted his opinion that repugnant 'law' was null & void.. --- For a while. -- In effect he then reversed himself thirty years later in Barron, by claiming that States could ignore our basic rights and write repugnant laws.
So, while I understand the frustration with judicial review, because it is not specifically described in the Constitution, it certainly is part of the Constitutional structure that has evolved. There is no walking that cat back. I guess what it comes down to is that the Constitution is simply not like the King James Bible in the hands of a Protestant, with each man as his own interpreter, but is a whole lot more like the Vulgate in the hands of the Roman Curia, with identified, strong institutions as its interpreter.
One can argue that it SHOULD not be that way, but it most certainly IS that way in the real world, and the might of the state will certainly back up the traditional power of the Supreme Court to decide what the Constitution says.
Again,-- you've lectured on a point not in contention here. I'm well aware of political reality. -- And this site is dedicated in part to fighting that "real world" disregard for our Constitution.
Your 'abortion amendment' would not be Constitutional.
What kind of hack is this judge? To totally misinterpret the Supremacy clause is mindboggling? Is this a political appointee who never spent a day in law school in his life? You have to wonder if some of these judges have ever even studied the law.
You: "Your 'abortion amendment' would not be Constitutional."
If 2/3rds of each house of Congress, and 3/4ths of the States approved it, it would be.
If a Constitutional Convention approved it, it would be.
There is no "override clause" in the Constitution. An Amendment duly passed through the amendment process is always constitutional by definition. I am having the greatest degree of difficulty really believing that you think otherwise. What's the basis for the argument.
Really.
Seriously.
I'm not playing a rhetorical game.
How can something be "unconstitutional" if it is enacted precisely following all the terms of the Constitution?
I will agree that the result could be HORRIBLE, if the country went nuts for some reason, but "unconstitutional"?
How?
Ok. I see your point.
I don't agree with it, because I don't think that when Marshall is referring to a "law" he is referring to the Constitution itself, which is what an amendment would be. An amendment isn't just a law, it is part and parcel of the Constitution itself.
I think that what Marshall is referring to is the sort of law like he was opining on in the decision, the Judiciary Act: a law passed by Congress.
That's how I would interpret what Marshall wrote.
But if I interpret him as you do, that a "law" would include the terms of the constitution itself, then I end up with a real conundrum, because I have the Supreme Court annulling parts of the constitution itself on the grounds that they were unconstitutional. Since the authority of the Supreme Court itself derives from the Constitution, I don't know how the Supreme Court could set itself over the Constitution as a judge of the Constitution against itself.
The Constitution against some other law passed by Congress, yes. But the Constitution against the Constitution? I can't get there.
Unfortunately, in Plessy v. Ferguson, the Supreme Court went there, and in effect did disregard the 13th, 14th and 15th Amendments. So we do have precedent...ugly precedent...for the Supreme Court treating amendments to the Constitution as somehow less than binding on the Court itself.
You don't seem like you'd approve of that sort of thing by the Court at all, which is why I'm having trouble seeing how you read that sort of power into the Court based on what the Court said in Marbury.
It's obvious to me you don't want to 'get there', because you want to give government the absolute power to prohibit abortion.
With that same power, government can prohibit ANY of our liberties. -- And if you can't 'get' that simple concept, I give up on you.
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