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".
Can you rephrase that? I don't clearly understand your point or question.
My point is that the Constitutional system of checks and balances necessarily permits SCOTUS to override Congressional law, and Congress to ovverride SCOTUS (via impeachment), and in between, the people intervene via elections.
The people, through their elected representatives in Congress and the state legislatures. If Marbury vs. Madison had been handled CORRECTLY, the court would have informed the Congress of a Constitutional conflict (or lack of Constitutional authority), and recommended that a Constitutional Amendment correcting or clarifying the identified problem be passed.
Instead, John Marshall usurped the power from the people on behalf of the Judicial branch. We are reaping the results of that today.
My interpretation of 'All Judicial Power' is Judicial review. It was Hamilton's as well. And Marshall's. And Scalia's. And Bork's.
See #31. What do you think the phrase, "all cases of law and equity arising under this Constitution" means? Hmmmm?
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
We can argue forever about what the law should be and endlessly revise and amend it. But we do need some surety about what the law is at any given time. Who owns the property? Who has the right to vote? If you can't give clear answers to such questions at a particular moment, then force rules (or else political and legal pettifogging and chicanery that eventually gives way to force).
In political debates people often assume that there are only two big alternatives: liberty, republicanism, or democracy on the one hand, and tyranny on the other. But the third alternative is the "failed state" which is too weak to impose law on anarchy. Such countries find it impossible to establish law and order, and usually collapse into tyranny.
For the Jeffersonian or libertarian political debate is a struggle between liberty and tyranny. For Washington or Hamilton, the prospect of a "failed state" torn apart by irreconcilable conflicts was a very real possibility and one that needed to be avoided. The idea of some arbiter who could compel the legislature to abide by the Constitution looked like a good idea, given the alternative of each faction taking up arms to prove that it had the right view of things. Whether or not the court has gone too far since the days of John Marshall is another matter.
The prevailing understanding today--at least the functional one--is that the Constitution means whatever at least 5 of 9 Supreme Court justices say it means. My read of the Constitution is that it means whatever 2 of the 3 branches of the federal government say it means. A defender of the current practice can argue that the Court can assume that the executive and legislative branches are aware of their decisions, and if they disagree they have remedies to change any decisions they don't like--e.g., the legislative branch by passing a law, limiting the scope of the Supreme Court's jurisdication (a power specifically provided to Congress in the Constitution), initiating an amendment, or impeachment; the executive branch by ignoring the ruling. The legislative and executive branches are in turn held accountable to the electorate. The problem--the legislative and executive branches have failed to use these rememdies, thus granting the judicial branch with enormous extra-Constitutional authority. To take it further, the electorate has tacitly gone along with this course of appeasement.
Have you read Marbury v. Madison? The plaintiff asked for a remedy that Congress passed, that the Constitution forbid. ANd you say the court is then, faced with that, to choose Congress?
Right. Let's see there's Hillary, Durbin, Kennedy, Boxer, Pelosi, ect... The people's oversight sucks.
No, actually it is NOT. FINAL authority lies with the people, via Congress and the state legislatures according to the stated amendment process.
Congress can only limit the Supreme Court through Constitutional Amendment. It's only the Appellate courts they can affect through laws.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Rejecting Marbury V. Madison means that any Congressional statute is ipso facto Constitutional. Is that what you mean?
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
MvM does not prevent amending the Constitution.
In a system of checks and balances, NO branch has the final word.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
State legislatures are irrelevant. The Constitution can be Amended, but then the Constitution itself is changed and the point of judicial review is mute.
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