Posted on 07/04/2006 8:11:19 AM PDT by RepublicanPatriot
The Hamdan decision is part of a larger pattern whereby elite liberal institutions, e.g., the Supreme Court and the New York Times, increasingly consider themselves to be the supreme arbiters of the national interest, and to be authorized to undermine the policies and decisions made by the elected branches of the federal government. At some point, the federal government and the American people have to stop “enabling” this harmful behavior. That point is now.
(Excerpt) Read more at americanthinker.com ...
Enforced by the Executive branch, via the National Guard, IIRC.
"The Constitution states that it is the Supreme Law of the Land and SCOTUS is the supreme arbiter of that law. Congress cannot pass a law that bypasses that part of the Constitution."
reply---
"Could you cite for me the article and section of the Constitution that grants SCOTUS that power? Where do they derive the authority to nullify or amend laws?"
my reply---
SCOTUS gave THEMSELVES that power - the most dangerous of all!
http://www.allanfavish.com/ajf_response_to_decision.htm
Regards,
Allan J. Favish
http://www.allanfavish.com
Agreed on the purpose of life tenure. My reading of the Founders' intent with regard to limits on SCOTUS was that two great forces would act to maintain balance: first and primarily, mortality; but secondarily, Congress' ability to impeach and remove from office any justice whose actions fall outside legal bounds.
I admit, neither of those limits are "institutional" in the manner you stated, and I agree that something might be proposed to fill that gap. It's a tough call, though -- the potential for abuse of that check, in its turn, is rather large.
Time to change that.
Today would be a good day to re-read the Declaration. There is not a whole lot that Jefferson wrote that couldn't be written about things that are happening today!
If The Founding Fathers could be alive today, I have no doubt that they would bring another Revolution. Sad that it has come to this.
Oh, I know the power was usurped in Marbury v. Madison. I was just invoking the Socratic Method.
Even Jefferson and Madison, himself, thought that the states had the right of what is now judicial review (see the Virginia and Kentucky Resolutions).
They're not dictators. If they are truly going against the will of the American people, the proper recourse would be to impeach them, which they can't do anything about, not to ignore one of the three branches of government. If we start doing this sort of thing we'll be a banana republic like Mexico in no time. What a garbage article.
"If they are truly going against the will of the American people, the proper recourse would be to impeach them, which they can't do anything about, not to ignore one of the three branches of government. If we start doing this sort of thing we'll be a banana republic like Mexico in no time."
Oh, come on! How do you propose this? We do not have a representative government any more. Does Congress have the power to impeach? Even if it did, they would not. Therefore, we are "a banana republic like Mexico"! Especially when Karl Rove speaks before La Raza and the LA Mayor is a card carrying member. California (and President Bush) does nothing about ILLEGALS and the courts remind us of this daily. IT HAS HAPPENED, my friend.
Yes, Congress has the explicit power to impeach Supreme Court justices. I really don't know how to argue with you if you want to abandon both the representative and judicial branches. What is it you want, executive dictatorship? Our government certainly isn't very good right now, but just about the only thing it DOES have going for it is the long history of respect for democratic institutions that keeps the US stable.
"Yes, Congress has the explicit power to impeach Supreme Court justices. I really don't know how to argue with you if you want to abandon both the representative and judicial branches. What is it you want, executive dictatorship? Our government certainly isn't very good right now, but just about the only thing it DOES have going for it is the long history of respect for democratic institutions that keeps the US stable."
I believe we have anarchy now: exhibit the traitors talking and acting vs. our Government's lack of control (to put it mildly). The only salvation we have, is the Rapture! Othewise, we have to act as our Founding Fathers responded to the lack of representation.
I will not let this country go down the tubes without a fight. My children and grand-children deserve better from me, and you! (This is a George Putam moment.)
Do you have a better idea?
A 10 year USAF Vet
From Article III, Section 2:"... 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."
The Constitution explicitly permits the Supreme Court to rule on the Law. It is not reasonable to expect that the Constitution will be the supreme law of the land and also expect that any legislation whatever is not in conflict with it. The amendment process is available whenever Congress desires to modify the Constitution. Otherwise, their legislation must be in accordance with it.
I am no expert in this matter, but even where the Supreme Court is denied appellate power, that does not necessarily imply that lower courts would be denied jurisdiction. Every court has the duty to say what the law is. If the officers of the court have taken an oath to "preserve, protect, and defend the Constitution", then I will not find myself surprised if they occasionally find that legislation is not Constitutional. That is their duty.
The only reason that people don't focus on the "judicial review" of the lower courts is that the Supreme Court typically has the last word and lower courts will often defer to their prior decisions. The Nuremberg trials made quite clear that judges have duties that transend just blindly applying legislation.
I fail to see what all the concern is about. The idea that the President has unchecked power to simply take prisoners and execute them off the battlefield is repugnant. And yet, without the power of Congress to legislate otherwise, the President would have that power.
One of the articles I read contained the surprising assertion that we should be able to treat Al Qaeda as if it were a nation because it had declared war against us. People seem to want to have the outcome they desire with very little logical consistency.
I believe if our Founders could see what the US looks like today, they would have little concern with the few cases where judicial review has struck down legislation.
I think they would be repulsed by the degree to which federal power now dominates our lives and they would regret ever having suggested that the federal government has the power to regulate interstate commcerce without an extremely limited definition of that phrase.
What would our Founders make of the so-called "Assault Weapons Ban" which outlawed some rifles simply because of the inclusion of a bayonet lug?
Actually it's much simpler. If the court does not have jurisdiction, then you aren't bound by its decisons. If the 7th District Court for People's Justice in the People's Republic of Bongo declares that your home is to be forfeit to their Prime Minister's son, and failing that you must pay a fine of $200,000 to the Bongo treasurer, would you feel bound by such a ruling?
Of course not. Why not? It is a court, isn't it?
But it lacks jurisdiction.
Just as profoundly and as certainly, the Supreme Court lacked jurisdiction in the present case. And nothing they can say can conjure up jurisdiction when noe exists.
The federal judiciary is a branch of the federal government. When the SCOTUS usurps the power of either or both of the other two branches, it is an exercise of raw federal power.
People who fawn over Marbury v. Madison always make a bald and unproved assumption that unless SCOTUS got into the judicial review business, the republic was doomed. A good case can be made that judicial review has encouraged the passing of sloppy and overreaching legislation because it gives the legislators and "out." They'll only consider the constitutionality of legislation superficially. Let SCOTUS sort it out after the fact.
A good case can be made that in the absence of judicial review Congress would be MORE, not less, sensitive to the political ramificaitions of their legislation.
Bump to #42
You profoundly mis-state the case, probably intentionally.
The President and his commanders have no power to "simply take prisoners and execute them off the battlefield". That is absurd, rediculous and is a straw man argument, regardless of how "repugnant" you may find it.
The true case is that the President and his commanders have every right, and indeed a duty, to "take prisoners " and possibly to execute them if they are spies, saboteurs, or otherwise not entitled to the protections of the rules of warfare.
There is nothing repugnant about that. In fact it is admirable and helps save lives by giving the enemy an incentive to wage war in a "civilized" way.
We are NOT obliged to wage war in a way that our opponents are not.
Educate me.
You have this one precisely on its head. It is the Supreme Court in Hamdan that grants Al Qaeda the status of a nation, not conservaties offended by the decision.
And is Congress one of the sources of those rules of warfare, or is it not? If Congress legislates the circumstances under which prisoners may be executed, does the President have the power to ignore that legislation and execute them outside the constraints passed by Congress?
There is nothing "strawman" about my argument since the lives of detainees at Gitmo are most certainly at risk.
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