Posted on 03/03/2005 5:34:47 AM PST by totherightofu
Your imagination is at work again, since Mr. Justice Marshall placed no such limits on the authority he claimed for the court.
I agree with Marshall & Scalia.
A bit tough to do, since they do not appear to agree with each other: Mr. Justice Marshall tended to expand the court's authority. As James Madison noted in 1821:
"It is to be regretted that [Marshall's] Court is so much in the practice of mingling with their judgments pronounced, comments & reasonings of a scope beyond them; and that there is often an apparent disposition to amplify the authorities of the Union at the expence of those of the States. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered over a traditional Govt... At the present date, [the court's] theoretic innovations at least are putting new weights into the scale of federal sovereignty which make it highly proper to bring them to the Bar of the Constitution."
To Mr. Madison's mind, Mr. Justice Marshall's court commonly issued "comments & reasonings of a scope beyond them," often apparently in attempts "to amplify" federal authority at the expense of the States - all of which was of doubtful constitutionality. (BTW - if that's not a description of the majority opinion in Roper v. Simmons, I don't know what is... ;>)
If you choose to agree with such a process, that is certainly your right...
;>)
P_A_I: There you are; --- irrationally arguing that Montana's delusionary legislators are powerless to challenge the NFA of '34.
As I stated previously: I've never claimed "that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution." I simply indicated that a "commerce clause challenge" is unlikely to be "upheld by the high court & restore gun rights in Montana."
In other words, thank's for proving my point!
;>)
As Mr. Justice Scalia has noted, the Constitution nowhere grants the high court the final and exclusive power of constitutional review (the power to 'say what the Constitution is').
Nor does Marshall. I agree with Marshall & Scalia. You're imagining that I do not. Silly you.
Your imagination is at work again, since Mr. Justice Marshall placed no such limits on the authority he claimed for the court.
You can't quote Marshall writing anything like that in Marbury.
I agree with Marshall & Scalia.
A bit tough to do, since they do not appear to agree with each other: Mr. Justice Marshall tended to expand the court's authority.
Marshall and Scalia agree, the Constitution nowhere grants the high court the final and exclusive power of constitutional review. -- Read Marbury for the proof as to Marshalls opinion.
Actually, the "irrationality" is entirely yours – I've never claimed "that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution." You've just posted yet another 'straw man argument'... ;>)
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From the "Constitutional Question" thread, my post #176:
To: Who is John Galt?
Sorry kid, Montana is fully justified in fighting that unacceptable law. -- Their legislators are not having delusions, you are.
Actually, P_A_I is in "denial mode," and the State legislators are indeed "having delusions," if they believe a 'commerce clause challenge' is likely to be upheld by the high court & restore gun rights in Montana... ;>) 173 WiJG
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There you are; --- irrationally arguing that Montana's delusionary legislators are powerless to challenge the NFA of '34.
As I stated previously: I've never claimed "that Montana does not have the power to write a law that contradicts the '34 National Firearms Act's 'interpretation' of the Constitution." I simply indicated that a "commerce clause challenge" is unlikely to be "upheld by the high court & restore gun rights in Montana."
Thank you for confirming you argued just as I said you did.
The words you used at #173 are clear. Your denial is specious.
When the Founders established the Court term as life it should be recalled that people did not live as long then so a man was truly old and enfeebled at 70 whereas now one can easily live into their 90s. Now I do not believe the Founders thought it to be appropriate to have a 90 year old Justice or even that it would be possible since the first Justices had to undertake grueling circuits on horseback.
It is true that the Court was designed to be the most conservative governmental institution which is why we should have a term longer than other officers. Now that conwervatism seems to have disappeared. But enlarging the court will give some president extraordinary powers since he will have to appoint the extra members at some point unless you plan on having one added each presidential term.
One of the topics discussed at the CC was to limit the number of terms Congressmen served. It was rejected and I tend to agree since it is something like protecting the voter from himself. The House was given such a short term because it was designed to be the most democratic part (actually the ONLY democratic part) of the government. As such it is to be held rapidly accountable through the quick turnover.
Another big difference is that Justices in the past would resign to run for office or be appointed AFTER holding elected office. Now they are increasingly legal specialists who have never had any approval or disapproval by the electorate.
How odd that you would put the opinion that the Court is supreme over the Constitution in my mouth when there is not a shred of evidence to support such a conclusion. I have never said anything other than that the Constitution is the Supreme Law of the Land and NOTHING is superior to it. Its creators, the American People, can change it according to the methods within it thus still have the power to change it but without those methods there can be no change.
Any law can be challenged as unconstitutional and that challenge can work its way through local, state and federal court systems until it winds up at the FINAL court of appeal, the USSC. It can be declared unconstitutional at any step and should the next higher court find that declaration valid there is no further appeal and the law is voided. So in this sense laws can be voided without the USSC becoming involved directly but those declarations are generally, if not always, based upon prior findings by the USSC.
I don't see any contradiction there. One must know what one is bound by and there is no divine guidance given which explains that as regards any law including the Constitution.
Courts have always been the source of guidance as to what a law means so that is not new. Nor is the accusation that they make up law rather than interprete it. Judge Roy Bean comes to mind.
EVERY law passed by Congress is constitutional until the Court rules otherwise. It can be lawfully ignored only when there is a judicial order staying its operation.
219 posted on 03/04/2005 1:20:06 PM PST by justshutupandtakeit
justshutupandtakeit wrote:
Marbury does not instruct officials to ignore laws they don't wish to obey. It states a truth but does not pretend that Moe, Larry and Curly get to decide upon constitutionality.
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From Marbury:
--- The constitution declares "that no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should he passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
Here the language of the constitution is addressed especially to the courts.
It prescribes directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject.
It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding agreeably to the constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of the United States if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
____________________________
Read Marshall's words that make yours look foolish.
229 P_A_I
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How odd that you would put the opinion that the Court is supreme over the Constitution in my mouth when there is not a shred of evidence to support such a conclusion.
I have never said anything other than that the Constitution is the Supreme Law of the Land and NOTHING is superior to it.
266 justtakeit
It is amusing to find that you believe throwing up a bunch of quotes is an argument. It isn't.
It need not be impeachment, simply defund them. My memory is that the SCOTUS didn't even have permanent office space until relatively recently.
As I stated, “Mr. Justice Marshall placed no... limits on the authority he claimed for the court.” I certainly can not quote something (limits on the high court’s authority) that he failed to even mention. You claim (in Post #257) to agree with “Thomas Jefferson and James Madison... that the States, not the federal courts, have the ultimate power to interpret the Constitution - to 'say what the Constitution is'” – “in the sense that it is the People in the States that actually wield that power.” Tell us: where, precisely, in Mr. Justice Marshall’s opinion does he recognize “that the States, not the federal courts, have the ultimate power to interpret the Constitution?”
;>)
Thank you for confirming you argued just as I said you did. The words you used at #173 are clear. Your denial is specious.
Actually, your reply is “specious” - your entire argument is a ‘straw man.’ Repeating your ‘straw man’ argument will not transform it into a rational argument, no matter how many times you repeat it. My posts are written, and therefore have specific meanings – they are not ‘living documents’ that mean whatever you want them to mean. But congratulations on your own, pathetic attempt at 'judicial activism'...
;>)
justshutupandtakeit wrote:
It is amusing to find that you believe throwing up a bunch of quotes is an argument. It isn't.
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It is amusing to see you unable to defend your position of post #219:
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Marshall never said government officials can ignore laws they consider "repugnant" nor has any other rational person.
Each and every individual does not have the option of deciding which laws are acceptable the him. There are many I would consider "repugnant" and would like to ignore but I don't have that freedom.
219 justakeit
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Marshall's main point in Marbury is that any law, made at any level of fed, state or local government -- or any court ruling on a law, -- is null and void if it does not conform to the US Constitutions principles.
-- And that all judges & officials at any level are honor bound by their oaths of office to reject such repugnant laws, refuse to enforce them, or work to repeal them.
Obviously this is not being done, and it is a failure of our political system, not one of our Constitution .. 211
Marbury v. Madison
Address:http://www.tourolaw.edu/patch/Marbury/
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Here above is what I wrote about
Marbury, and what Marshall wrote.
Your imaginings about what I wrote are ludicrous, --- and your ignorance of Marshall's main point is evident to anyone that reads the decision.
224
"...[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers..."
Kentucky Resolutions, 1798
Insofar as the high court claims to be "the exclusive or final judge of the extent of the powers delegated to itself," it's powers know absolutely no limit. Mr. Justice Marshall claimed to be "bound" by the Constitution, but he also claimed the right "to say what the law [including the Constitution] is." In short, he claimed a right to judge "the extent of the powers delegated," making the court's "discretion, and not the Constitution, the measure of its powers"...
;>)
Hahahahahahaha ... You used the words "Congress" and "backbone" in the same sentence ...
As Mr. Justice Scalia has noted, the Constitution nowhere grants the high court the final and exclusive power of constitutional review (the power to 'say what the Constitution is').
Nor does Marshall. I agree with Marshall & Scalia. You're imagining that I do not. Silly you.
Your imagination is at work again, since Mr. Justice Marshall placed no such limits on the authority he claimed for the court.
You can't quote Marshall writing anything like that in Marbury.
--- I agree with Marshall & Scalia.
A bit tough to do, since they do not appear to agree with each other: Mr. Justice Marshall tended to expand the court's authority.
Marshall and Scalia agree, the Constitution " nowhere grants the high court the final and exclusive power of constitutional review." -- Read Marbury for the proof as to Marshalls opinion.
As I stated, "Mr. Justice Marshall placed no... limits on the authority he claimed for the court."
You are wrong. He acknowledged limits. Read Marbury.
I certainly can not quote something (limits on the high court's authority) that he failed to even mention.
Exactly, he never claimed 'the high court has final and exclusive power of constitutional review', or anything of the sort. Thus -- your pitiful straw man claim collapses.
You claim (in Post #257) to agree with "Thomas Jefferson and James Madison... that the States, not the federal courts, have the ultimate power to interpret the Constitution - to 'say what the Constitution is'" – "in the sense that it is the People in the States that actually wield that power." Tell us: where, precisely, in Mr. Justice Marshall's opinion does he recognize "that the States, not the federal courts, have the ultimate power to interpret the Constitution?
From post #257: His [Marshalls] comments have been understood for over 200 years by everyone that is rational about the issue.
Actually, Thomas Jefferson and James Madison stated that the States, not the federal courts, have the ultimate power to interpret the Constitution - to 'say what the Constitution is.'
I agree, in the sense that it is the People in the States that actually wield that power.
Tell us: where, precisely, in Mr. Justice Marshall's opinion does he recognize "that the States, not the federal courts, have the ultimate power to interpret the Constitution?
He tells us that the People wield that power, here:
" --- The question, whether an act, repugnant to the constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental.
And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. --- "
You really should try to understand Marshall's words in Marbury, Galt. -- The above are some of his best.
Mr. Justice Marshall claimed to be "bound" by the Constitution, but he also claimed the right "to say what the law [including the Constitution] is." In short, he claimed a right to judge "the extent of the powers delegated," making the court's "discretion, and not the Constitution, the measure of its powers"..
Your out of context mis-takes on what Marshall wrote are a wonder to behold.
You seem to have an almost personal animosity to the man. -- I'll grant he was a deeply flawed individual in later years, but in 1803 he was at the top of his constitutional form.
What's your real beef here?
Actually, since Mr. Justice Marshall claimed the right to “say what the law is,” and did not explicitly recognize any limitation on that right except the same law he claimed the power to interpret, my criticism stands. “You really should try to understand Marshall's words in Marbury.” And my argument, BTW, is not a ‘straw man’ argument – perhaps you should do a little additional ‘remedial reading’...
;>)
Sorry, sport, but “an original right to establish” is not the same as the ‘right to review.’ Try again...
;>)
As I have stated repeatedly, there is a fundamental logical flaw in Mr. Justice Marshall's argument. Since you appear to lack the ability to comprehend my words, I will refer you to those of Thomas Jefferson (I'll make it simple for you: see Post #273).
You do seem to be awfully 'slow on the uptake'...
;>)
You are wrong. He acknowledged limits. Read Marbury.
I certainly can not quote something (limits on the high court's authority) that he failed to even mention.
Exactly, he never claimed 'the high court has final and exclusive power of constitutional review', or anything of the sort. Thus -- your pitiful straw man claim collapses.
Actually, since Mr. Justice Marshall claimed the right to "say what the law is," and did not explicitly recognize any limitation on that right except the same law he claimed the power to interpret, my criticism stands.
We discussed your out of context straw man use of "say what the law is" quite some time ago. You were proved wrong, and shown where he explicitly recognized limitations on the courts power to interpret law.
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Tell us: where, precisely, in Mr. Justice Marshall's opinion does he recognize "that the States, not the federal courts, have the ultimate power to interpret the Constitution?
He tells us that the People wield that power, here:
" --- The question, whether an act, repugnant to the constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. --- "
You really should try to understand Marshall's words in Marbury, Galt. -- The above are some of his best.
Sorry, sport, but "an original right to establish" is not the same as the 'right to review.' Try again...
Marshall says that "the people have an original right to establish [principles] for their future government, -- ".
Principles the people established cannot be "reviewed' away, -- obviously.
Unfortunatly, you seem unable to grasp that point. A Catch 22 type failure, no doubt.
Fine, -- you can't understand Marshalls fundamental logic, -- and no one here can understand yours, poor thing.
Nothing in Jeffersons words you quoted conficts with anything Marshall wrote in Marbury:
"...The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers..."
Kentucky Resolutions, 1798
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