Posted on 07/15/2005 6:40:06 AM PDT by epson8750
"Some judges profess a single explanatory theory for construing the Constitution, a doctrine that makes one value — majority rule, or limiting government, or minimizing judges' discretion — trump all others. Most such judges will flinch from following that doctrine to conclusions inconsistent with either a long line of precedents or the nation's current sense of justice. But flinching will not save such judges from being portrayed as willing to let severe logic lead the law to conclusions that the nation has decided are unacceptable."
"... judicial responsibility for refereeing, by constitutional principles, the government's behavior. And the public's behavior, too. Majority rule, to which the political branches are subservient, does not trump constitutional law. This provides a central drama of America's polity — judicial review. It is in tension with democracy, yet is indispensable if the Constitution is to limit government. "
(Excerpt) Read more at jewishworldreview.com ...
Yeah, I only read his columns here and there now. They're not worth much anymore. He also wants to keep the judicial filibuster because the Republicans might need it someday. Lets just keep empty court seats and full dockets so we might have partisan advantage in the future. Ridiculous reasoning.
Example: when the Supreme Court ruled that Jehovah's Witnesses need not recite the Pledge of Allegiance because it violated their religious beliefs, the Court was enforcing the First Amendment. And, it was overriding the laws duly passed in West Virginia and most other states that the Pledge was mandatory for all students.
As someone who has practiced law in the Supreme Court for a third of a century, I could offer you hundreds of examples where the Supreme Court upheld the plain language of the Constitution, under assault by majority votes in state legislatures or Congress.
A true conservative in the United States seeks to defend and respect the Constitution, including the fact that all should obey it -- Presidents, Congressmen, Justices alike. Your quarrel is not with judicial review in general. It is with judicial review when the Justices abandon the Constitution and start reading their personal views into the Constitution.
Congressman Billybob
"The whole function of the Supreme Court is to make anti-majoritarian decisions. If its purpose were to enforce majority rule, it would have no use beyond that of Congress."
No. It's purpose (orginally outlined in the Constitution) is to be the ultimate arbiter of civil and criminal cases appealed from state and lower federal courts; not to be the ultimate legislative trump card. Marbury v. Madison was basically a coup d'etat (of sorts) by J. Marshall. Sadly, only Andy Jackson had the guts to stand up to Marshall.
"Example: when the Supreme Court ruled that Jehovah's Witnesses need not recite the Pledge of Allegiance because it violated their religious beliefs, the Court was enforcing the First Amendment. And, it was overriding the laws duly passed in West Virginia and most other states that the Pledge was mandatory for all students"
That was logical overreaching by the USSCT. Requiring someone to say the Pledge (and this was back before "under God" was in the Pledge!) cannot--in the real world--be considered "establishment" of religion.
Therefore, being compelled to say the Pledge of Allegiance violated their freedom to practice their own religion. The Supreme Court, correctly the second time it took this case, so ruled.
If you learned a little more about what the Supreme Court has done, you would be better equipped to see the critical difference between its doing its job, and its exceeding its authority. It is just as important that the Court not be afraid to carry out its constitutional duties, as it is that the Court not exceed those duties.
John / Billybob
Why should you care about a 220-year old Virginia case? Judge Wythe was also the first professor of law in the United States. Among his students were Henry, Jefferson, Madison, Marshall, and Mason. In short, the Framers in Philadelphia were well aware of this case and this man.
There were also five other state cases, prior to 1787, holding that the highest court in a state was empowered and obliged to strike down any law from its legislature, if that law violated the plain terms of its constitution. The latest of these was decided across the river from Philadelphia, in New Jersey. And, the Attorney General of NJ was one of its delegates to the Convention.
In short, it is a common myth, but factually false, that the fourth Chief Justice, John Marshall, "invented" the theory of judicial review in Marbury v. Madison. This belief is widespread, but is factually false.
John / Billybob
I used to have a problem with Marbury but not anymore.
But consider this.
Marshall held a law unconstitutional because it authorized the court to order the executive to deliver the judicial commissions but that the court did not have the authority to issue such an order - because political rival President Jefferson would have ignored the mandamus.
But today the court can order the President to do just about anything, aince the court is the "final authority" and the President is just a rubber stamp and the police and military are just functionaries of the court where presidents and governors are just human resource directors and physical plant maintainers and janitors for the judges who are the real line executives.
In that case, isn't the logic of Marbury moot, if not the effect? Today, laws can be held unconstitutional just because the court wants to. And the executive does whatever the court says because he has to. And there is no separation of powers, which was the basis of Marbury.
I think the current view that the court protects the rights of minorities is a little off. The constitution limited the power of governmnet and did not favor minorities.
This came out a week ago.
And it was published then.
Twice.
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