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".
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I am for a new amendment to the constitution and I think it would get a lot of support. Since judges have become lawmakers lets give the other lawmakers (congress) an over ride option similar to that they have in overturning a presidential veto. I guarantee that they would have overturned the imminent domain ruling over by now.
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammeled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. -- "
I think I have a refutation here. According to your post, Root argued: "You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself." That tracks the language of Article V of the U.S. Const.: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States," with the exception of the word "quorum."
I assume Root was, therefor, arguing that a quorum was insufficient to the purpose. Was it?
If a two-thirds of a quorum was all that was necessary to ratify the first ten amendments, there seems little justification for claiming more would be needed for the eighteenth.
Quorums are not the point.
Root 'boldly' argued that alcohol prohibition is an unconstitutional infringement on our basic individual rights. -- Much as an amendment prohibiting guns would be unconstitutional.
He was arguing principle.
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But the parts you bolded merely re-state Article V of the original Constitution. Congress and the States are specifically delegated the power to change the Constitution itself. There is nothing in that document limiting the changes to certain "principles," that I know of anyway. Can you point to such a limitation?
I agree that the 18th was a bad idea, as would be repeal of the 2nd (which would be a casus belli for me), but the Constitution provides for it. "Unconstitutional" means prohibited by a constitution; it is not synonymous with "unprincipled."
But the parts you bolded merely re-state Article V of the original Constitution.
" --- You will have declared that --- Congress, plus a majority of the --- States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. -- "
This 'bolded' part of Roots argument makes perfect sense as an argument of principle.
Quorums are not the point.
Root 'boldly' argued that alcohol prohibition is an unconstitutional infringement on our basic individual rights. -- Much as an amendment prohibiting guns would be unconstitutional. He was arguing principle.
Congress and the States are specifically delegated the power to change the Constitution itself.
With the proviso that amendments be " -- Valid to all Intents and Purposes, -- "
There is nothing in that document limiting the changes to certain "principles," that I know of anyway. Can you point to such a limitation?
The Constitutions basic principles [that individual human rights are to be protected] are scattered throughout the document. There is nothing in the Constitution giving government or majorities the power to 'amend away' our individual rights to life, liberty, or property. Can you point to such a power?
I agree that the 18th was a bad idea, as would be repeal of the 2nd (which would be a casus belli for me), but the Constitution provides for it.
Why do you want government to have a power you agree is a bad idea?
"Unconstitutional" means prohibited by a constitution; it is not synonymous with "unprincipled."
Wordplay. - An amendment, repealing the 2nd for instance, - would be repugnant to the document and could be termed both unprincipled & unconstitutional.
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" --- You will have declared that --- Congress, plus a majority of the --- States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. -- "
Except you are dropping the part that Root acknowledged: a super majority, not a simple majority is required for these changes. Article V grants exactly the power Root was complaining of.
"Quorums are not the point.
Root 'boldly' argued that alcohol prohibition is an unconstitutional infringement on our basic individual rights. -- Much as an amendment prohibiting guns would be unconstitutional. He was arguing principle."
Alcohol prohibition WITHOUT that amendment would have been unconstitutional. The amendment was a "constitutional" infringement on our rights, as was this part of Article IV: "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." Since the Persons in question were being deprived of their liberty (an "unalienable right," as the unanimous Declaration puts it) from birth, without any crime on their part, I'd say that was rather worse the the Eighteenth Amend. And yet, it was part of the original Constitution, and hence constitutional at that time. An act of Congress prohibiting gun ownership would be unconstitutional because such a statute is prohibited by the 2nd and 10th Amendments. An amendment AMENDS the Constitution, and if ratified could remove that prohibition.
"With the proviso that amendments be " -- Valid to all Intents and Purposes, -- "
Proviso??? "...which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;" That is saying exactly what I am saying; that a ratified amendment SHALL BE VALID. The only way a court could strike it down would be to challenge the ratification.
"There is nothing in the Constitution giving government or majorities the power to 'amend away' our individual rights to life, liberty, or property. Can you point to such a power?"
Article V. Does it really need to be quoted again? Here is the only limitation on the amending power therein granted: "Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The only part of that which touches on individual rights is the 4th clause of the 98th Section of the 1st Article: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." There is nothing there that prohibits the 18th Amendment or prevents the repeal of the 2nd.
"Why do you want government to have a power you agree is a bad idea?"
What powers I want the government to have and what powers it does have are two different things. Confusing personal (even strongly held) preferences with the Constitution is what bad judges do. I don't wish to emulate them.
"Wordplay. - An amendment, repealing the 2nd for instance, - would be repugnant to the document and could be termed both unprincipled & unconstitutional."
In a conflict between an original law, and an amendment to the law, the amendment rules. That is the purpose of an amendment. Repealing the 2nd by amendment would be contrary to my principles, certainly, but without doing violence to the language, could not be said to be unconstitutional.
How could the Constitution 'provide' for amendments that infringe on its principles?
Why do you want government to have a power you agree is a bad idea?
What powers I want the government to have and what powers it does have are two different things.
Not really; - government takes the power we allow them to have. -- We have met the enemy, - he is us.
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"Unconstitutional" means prohibited by a constitution; it is not synonymous with "unprincipled."
Wordplay. - An amendment, repealing the 2nd for instance, - would be repugnant to the document and could be termed both unprincipled & unconstitutional.
In a conflict between an original law, and an amendment to the law, the amendment rules.
Only if the amendment is constitutional in itself. Our right to arms is inalienable, and cannot be 'repealed'.
That is the purpose of an amendment. Repealing the 2nd by amendment would be contrary to my principles, certainly, but without doing violence to the language, could not be said to be unconstitutional.
Doing violence to 'language' is of concern when infringements of rights are at issue? That's quite the principle.
"How could the Constitution 'provide' for amendments that infringe on its principles?"
Article V "provides" that.
"Why do you want government to have a power you agree is a bad idea?"
I don't, as I've written.
"Not really; - government takes the power we allow them to have. -- We have met the enemy, - he is us."
The lawful extent of that allowance is spelled out in the Constitution. Propose an amendment if you wish to reduce it. Something along the lines of the existing restrictions on amendment in Article V, but prohibiting the repeal or modification of the first ten amendments would be something I could support.
"Only if the amendment is constitutional in itself. Our right to arms is inalienable, and cannot be 'repealed'."
Nothing is "unconstitutional" unless prohibited (or not authorized) by the constitution in question. Nowhere in the U.S. Constitution is the word "inalienable" used.
"Doing violence to 'language' is of concern when infringements of rights are at issue? That's quite the principle."
If you are not willing to use language as a means of common understanding, no discussion is possible.
"Our right to arms is inalienable, and cannot be 'repealed'."
Doing violence to 'language' is of concern when infringements of rights are at issue? That's quite the principle."
Already answered. If you wish to discuss, learn that specific words mean specific and distinct things.
"Inalienable is used in the Declaration to define our rights to life, liberty, & property, as noted in the Constitution."
Where noted? Cite the the article and section, please. "Inalienable" does not appear in the Declaration, either. "Unalienable*" does, but that does not define any rights (don't know why you claim that, we have not disputed any definition of rights, only of "unconstitutional.") Here is the context (from the Declaration):
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Note:
1) The source of the rights thus claimed is not any constitution or other instrument of human government, but the Creator of men, i.e. God.
2) It is the "Right of the People" to alter (amend) or abolish governments. "Right" only when said governments become destructive of rights, but within the power of the people in any case.
Even a cursory study of human history shows that most governments have acted against right, even making such wrongs part of their constitutions. (The most famous example in ours being the Article IV requirement that persons "held to Service or Labour," i.e. slaves, are to be returned to their masters across State lines.) That was a deprivation of the unalienable right to Liberty endowed upon those persons by their Creator. And it was part of the Constitution, hence "constitutional."
The 2nd Amendment contains no provision prohibiting its repeal. Article V provides a method for that repeal. Just as the 18th was repealed, the 2nd can be. Hopefully their is enough support for the 2nd to prevent that, or if it happens, enough support for another secession. Both would be constitutional: repeal, under Article V, or secession, under Amendment X.
*UNALIENABLE: The state of a thing or right which cannot be sold. -http://www.constitution.org/bouv/bouvier_u.htm
The 2nd Amendment contains no provision prohibiting its repeal. Article V provides a method for that repeal. Just as the 18th was repealed, the 2nd can be.
Dream on.
Why do you -want- to believe The 2nd can be repealed? What constitutional principle is served by allowing the repeal of one of our basic unalienable rights?
Bouvier's Law Dictionary, 1856 Edition - Letter U
Address:http://www.constitution.org/bouv/bouvier_u.htm
UNALIENABLE. The state of a thing or right which cannot be sold.
The natural rights of life and liberty are unalienable.
UNCONSTITUTIONAL. That which is contrary to the constitution.
2. When an act of the legislature is repugnant or contrary to the constitution, it is, ipso facto, void. 2 Pet. R. 522; 12 Wheat. 270; 3 Dall. 286; 4 Dall. 18.
3. The courts have the power, and it is their duty, when an act is unconstitutional, to declare it to be so
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"UNALIENABLE. The state of a thing or right which cannot be sold.
The natural rights of life and liberty are unalienable."
Which has no bearing on whether something is unconstitutional, does it?
"UNCONSTITUTIONAL. That which is contrary to the constitution."
Right; Article V is part of the Constitution. An act of a court contrary to Article V is unconstitutional.
Ratification of an amendment pursuant to Article V is not contrary to the Constitution, hence it is constitutional. That such an amendment would override previous parts of the Constitution is the purpose of amendment, is it not? If you know how to amend a law without changing the law, I'd be real curious to see an example, together with an explanation of why an amendment that makes no change in the law is needed.
The 2nd Amendment contains no provision prohibiting its repeal. Article V provides a method for that repeal. Just as the 18th was repealed, the 2nd can be.
"UNCONSTITUTIONAL. That which is contrary to the constitution." --- Repeal of the 2nd would be contrary to the principles of the Constitution.
Right; Article V is part of the Constitution. An act of a court contrary to Article V is unconstitutional.
An opinion that a repugnant Amendment is unconstitutional would not be 'contrary' to Article V. Such opinions are part of USSC duties under Article III.
Ratification of an amendment pursuant to Article V is not contrary to the Constitution, hence it is constitutional.
Ratification of an amendment to repeal the 2nd, -- pursuant to Article V, -- would be contrary to all the principles of our Constitution, hence a repeal would be unconstitutional.
That such an amendment would override previous parts of the Constitution is the purpose of amendment, is it not?
Why do you want to give majorities a power to 'override' the right to bear arms?
If you've read what I wrote, you know what I think, and why.
The Constitution doesn't have "principles." It has Articles, Sections, and clauses. For an act to be
"unconstitutional" it has to be contrary to one or more of those. What anyone might presume to be the Constitution's "principles," like its "penumbras" and "emanations," is irrelevant to the constitutionality of any act. An act of any legislature is constitutional if authorized by, and not prohibited by, any applicable constitution.
An amendment to a constitution is constitutional if properly ratified, and not prohibited by any limitations on the amending power, or by any superior constitution. Such limitations on a few subjects are spelled out in Article V of the U.S. Const. If you wish to give the 2nd Amend. the unrepealable status of of, say, each State's equal suffrage in the Senate, you would have to spell it out in a further amendment, since such a limitation does not now exist.
It does no good, as Elihu Root found out, to pretend that it does.
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