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To: Borges; Tzimisce
There is however in the Federalist which is the basic document used for interpreting the intentions of the FF

Well, here is what Hamiltion has to say on the subject in Federalist 81.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

The first paragraph outlines the worry about a supreme court. The second paragraph begins the argument which will deny that worry. Needless to say, Hamilton was wrong. It has happened.

42 posted on 03/13/2006 10:07:01 PM PST by AndrewC (Darwinian logic -- It is just-so if it is just-so)
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To: AndrewC
And here's No.78:

Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The further away we get from the time a text is written the more slippage of signification there will be. It's unavoidable. The solution is to appoint Justices that share our interpretation of the Constitution.
43 posted on 03/14/2006 11:22:27 AM PST by Borges
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To: AndrewC


Show me where Judicial Review exists IN THE CONSTITUTION OR DECLARATION OF INDEPENDENCE. Those are the legal documents.

There were a lot of ideas in the early Republic that were eventually thrown out or rejected.

I think the Constitution should matter - why don't you? And why don't these judges?


60 posted on 03/14/2006 11:42:29 PM PST by Tzimisce (How Would Mohammed Vote? Hillary for President! www.dndorks.com)
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