Posted on 07/09/2005 3:15:41 PM PDT by 1stFreedom
Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review.
Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison.
Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception.
The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did.
A "strict constructionist" who adheres to Marbury v. Madison and the flawed principle of stare decisis (doctrine of precedent/settled law) won't do any good for the nation. It doesn't matter if George Bush were to fill the court with nine "strict constructionists" if they accepted stare decisis and Marbury V. Madison.
If you want to take the courts back from judicial tyrants, it's time to call for justices who won't be bound by terrible precedent and who recognize the authority of Congress and the inability of the court to rule on congressional legislation.
It's time to call for nominees who refuse to be bound by illicit precedents and illicit power grabs. Now is the window of opportunity to fix the courts, and it will take much more than nominees whose only qualification is that they are a "strict constructionist."
It's essential that you call your Senators and the White House Monday to demand nomination and approval of nominess who reject both Marbury V. Madison and "stare decisis".
I think that Scalia would do exactly what you are asking. He sited in one of his recent opinions that the ruling that created the precident was just bad law. I think he said something like, it wasn't one of the courts finer moments.
Blackstone presumes an authority that is above the law. Lose that ... assert that man's law is "supreme" ... and the bedrock is at least disturbed, if not disregarded.
Scalia has explicitly stated he see no problem with Marbury Vs Madison. He called it a 'plagiarism of Hamilton in the Fedaralist'
I don't think that I understand what you are saying, he called what "plagarism of Hamilton."
That sets up a false choice, as between two rulers, which is better. The Constitution says pick neither, because, as an individual, you need not be so bound.
As for the masses, they vote for bread and circuses.
http://www.lewrockwell.com/orig5/davidson1.html <- Part V is concise.
I'm no fan of majority rule, and certainly no fan of democracy.
Ok, I see what you are saying. Scalia likes Marbury vs Madison. Well, that may be but he doesn't thing that Marbury vs. Madison applies to bad law.
You are mistaking speech, with it's communication of concepts, ideas, truths and expresion, with slander and fraud. Speech is a right. Slander and fraud are violations of rights. Govm'ts only justification is to protect rights. The 1st Amend protects speech, not slander and fraud.
"There are no absolute rights."
Sure their are. Here's a short listing: Life and the individual sovereignty of will that derive from it, self defense and the right to mount an effective defense, (see free speech and the 2nd Amend.) The right to religeous freedom, including expression and exercise thereof.
***And what if it clearly isn't Constitutional?
And what if it IS clearly constitution but the SC says it isn't? What then? I know presidents have ignored the SC throughout history. Is that what should be done and do they have the will to do it?
Borges said it beautifully, "The amendment process is the final word on the content not the interpretation." Change the content and the point is mute.
Failed states are an artifact of force.
Personally, I give gratitude to God for the fact that I was born in the USA, beause I am more able to freely express my beliefs here than I would be anywhere else on earth.
Serendipity.
"Justice Scalia sees no problems with JR."
You are absolutely correct in your opinion...and so is Scalia.
There have been no Constitutional or other governmental challenges to Judicial Review (Marbury)...For the practical application, just look at the Constitutional crisis we would have been in if Bush's first election didn't have the SC having some ending and final interpretation.
***Have they? I know Jackson did and it's a low point in American history. I'd be curious to see a list of these incidents.
I believe Lincoln did also. I can't think of any others right now, but will see if I can find anything else on it.
Do you have an answer to my other question though? I wondered what the remedy would be in that situation....
It would seem a case of Civil War would be an exception that proves the rule. But the SC has the final authority to interpret the Constitution. That means they win the argument. There are bad decisions just like there are bad laws and bad Presidential appointments. The Republic gets by.
You should read the U.S. Constitution, Article III, Section 2, Clause 2. The second sentence therein states: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Thus, the Supreme Court is an appellate court subject to restrictions imposed by Congress--by statute, not amendment. The only areas in which Congress can not interfere (without amendment) are those few areas mentioned in the first sentence of the clause: cases affecting ambassadors, public ministers and consuls, and where a state is a party. That gives Congress an enormous amount of authority over the Court that they have been too timid to use.
Irrespective of the quality of the crime, legal sanction(s) for commiting the crime are rights violations. The sanctions are justified to protect the rights of all the others.
"By 'absolute' I mean not subject to government usurpation no matter what."
Like? Absolute rights are claims to right, which if taken w/o justification always diminish and alter the nature of individuals to a great extent. Absolute rights are enumerations of various items of the essence of man. They are the rights spoken of in natural law.
"We are born with rights which we keep by means of a social contract."
No. You are born with the rights. If you keep them, it is because a gift was extended to you by your fellows honoring them. You can extend that gift to others, or fail to and suffer their wrath. A contract implies, not right, but priviledge and something earned. Liberals and other authoritarian cons would have folks believe in and talk contracts.
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