Posted on 10/23/2006 5:03:34 PM PDT by JTN
That is authority to rule on cases of law, not to create, rewrite, or nullify the law. Again, if I'm wrong, why did the SC fail to act for 140 years?
Read Marbury [1803]. It is has been accepted since then that the 'appellate Jurisdiction' clause delegates the Court authority to nullify unconstitutional 'law', whether fed/state/local. Can you agree?
There is nothing in the Constitution about the Court being "more equal" than the other branches,
Specious comment, as no one here so claims
and nothing about being final arbiter of the Constitution.
Again specious, as no one here has so claimed.
The Constitution created the SC to be the ultimate arbiter of criminal and civil law, and to serve as a higher authority when states were in legal disagreement.
See Marbury, as above.
The supreme court has already shown that if an amendment goes against how they have define the Constitution, they will just ignore it,
Quite true. They ignored the obvious unconstitutionality of the 16th, 17th & 18th Amendments.
or strike it down before it can be ratified.
??? -- You really will write most anything for effect, won't you?
Sure. If you've got the magic formula, let's do it. Otherwise you'll have to live with the fact that they represent people like themselves that you either have to find a way to avoid civil war with, or kill.
By the way, the principal purpose of the Consitution is to avoid having a civil war every 20 years. So far we're beating the average.
That includes any laws passed by Congress.
Includes seeing the cases, not rewriting the law, and I've got the framers and the first 140 years of Legislators and Justices in agreement on this. Its not even questionable.
If the constitutionality of federal law is not within their pervue, there is no point in them being Constitutional scholars or studying Constitutional Law. All that's left is to rule on propriety of the process.
They are to do what all judges are to do. Try a case by the law and rule on it. They have many purposes all defined explicitly in Section 3. Do you think that had the framers intended the SC to have veto power on the legislature and executive that they would have been clear about it, like they were with the executives veto power, so that it wouldn't take 140 years for it to be understood?
Fail to act on what? Marbury v Madison was in 1803. You seem to be interested in revising more than the Constitution.
There was no issue of a law being constitutional in Marbury v. Madison. It was a case of whether an incoming President could be forced to act on a previous President's promised commission. That's mechanical, not super-legislative. Like a legislator suing the whip for more time on the floor.
You're insulted? I thought you'd be delighted, or at least reach a transandental state. And the accusations certainly aren't empty.
They don't "rewrite law". They rule on the constitutionality of laws. It's left to Congress to re-write them if necessary.
They are to do what all judges are to do. Try a case by the law and rule on it. They have many purposes all defined explicitly in Section 3. Do you think that had the framers intended the SC to have veto power on the legislature and executive that they would have been clear about it, like they were with the executives veto power, so that it wouldn't take 140 years for it to be understood?
Every Supreme Court in every State weighs State laws against the State Constitution, and will strike it down if it is found to be in violation. Only Supreme Courts do this. This job of Supreme Court judges, be they state or federal, is not like the job of lower court judges in either venue.
What changed under FDR was not that the judges ruled on the constitutionality of federal law, but the basis upon which they interpreted the Constitution.
There was no issue of a law being constitutional in Marbury v. Madison. It was a case of whether an incoming President could be forced to act on a previous President's promised commission. That's mechanical, not super-legislative. Like a legislator suing the whip for more time on the floor.
Marbury formally established the Court's role as the final arbiter of constitutionality.
From Marbury v. Madison: "So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. . . "
If the Constitution is the Supreme Law of the Land, which one to uphold is a foregone conclusion.
"So no, I would not want to surrender to THC addicts but rather do a more effective job in rounding them up."
And while you're at it, you should round up all the caffein,alcohol, fat fast food eating, and nicotine addicts too. Oh yea, lest I forget you should round up all those turkey eating folks before T-day because whatever that drug is in turkey that makes you sleepy needs to be outlawed too. And all those doctors prescribing and the drug manufacturers making Lunesta that puts people to sleep need to be round up too. And all those doctors prescribing and all those manufacturers making xanex need to be rounded up too right? Xanex is a mind/mood altering drug. And all those doctors prescribing and all those manufacturers making ritalin need to be rounded up too right? Because ritalin is a mind/mood altering drug. And all those doctors prescribing and all those manufacturers making that drug adderol(sp) for ADD which is also a mind altering drug needs to be rounded up as well.
Who else would you round up to make your world drug free and more suited to your fantasy?
oh yeah........
It was mechanical. Another example would be if the Congress passed a law allowing the President to serve 20 more years. Constitutional conflict on the mechanics of government.
Conversely, you have super-legislative, where you have Justice O'Connor ruling that Affirmative Action is Constitutional today, but may not be in the future if its no longer necessary. Necessity being defined by her. Her ruling had nothing to do with protecting the Constitution, but rather protecting a law from the Constitution. The developing trend to use foreign law and mandate legislative action, makes my case all the stronger.
If it were intended for the SC to have veto power, the Constitution would have required bills to go there for review before becoming law.
Your understanding of the law is so self-serving that I must conclude that you are a lawyer. Which might explain your desire to be ruled by lawyers.
You have hit the proverbial nail on the head. End of the bar potentates, trying to rule the world without social interaction.
Whoa...chill out.
Those items you refer to are all legal. When at such time the citizenry or some outlaw government entity decides to reconsider, I might be persuaded to join in an uprising. As for the present, keep the legal lid on drugs...the mind altering addictive ones.
[The USSC has] authority to rule on cases of law, not to create, rewrite, or nullify the law. Again, if I'm wrong, why did the SC fail to act for 140 years?
Read Marbury [1803]. It is has been accepted since then that the 'appellate Jurisdiction' clause delegates the Court authority to nullify unconstitutional 'law', whether fed/state/local. Can you agree?
There was no issue of a law being constitutional in Marbury v. Madison. It was a case of whether an incoming President could be forced to act on a previous President's promised commission. That's mechanical, not super-legislative. Like a legislator suing the whip for more time on the floor.
From Marbury:
"-- Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. --" Justice Marshall 1803
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"-- There was no issue of a law being constitutional in Marbury v. Madison. --" Only in your imagination S-man.
"-- how about an answer? You haven't bothered to have one of those in the last dozen or so posts.
Running away from the issue isn't a good sign for your argument's strength. --- How about being brave and making one? --"
I take it they never taught Civics or American History where you went to school.
If it were intended for the SC to have veto power, the Constitution would have required bills to go there for review before becoming law.
The quote I gave you from Marbury was written by Chief Justice Marshall, one of the Founders. I trust him to know what was "intended" a lot more than I do you.
In contrast to OConner's jurisprudence, I'll give you some from Clarence Thomas:
"I write separately only to express my view that the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce."
There's something directly releveant to the issue at hand. Tell me what you think is wrong with it.
What's wrong is that you don't have a court made up of like minded individuals. Have you noticed that Thomas writes mainly minority positions?
The Court is given far too much undeserved praise for being non-political, and an objective guardian of the Constitution.
I'd like to get back to your premise that the Court isn't really unchecked, because the People can always pass Amendments. First, you need to go off in a corner with tpaine and come to grips with your assertion that majority rule canceling out fundamental rights is OK, as long as its a super-majority. Now let's look at your assertion. If the People pass an amendment to the Constitution stating that black people can't vote, and the first case goes before the Supreme Court. The Court will strike down the laws created in the umbrella of the new amendment, because the laws are in violation of the preponderance of the Constitution, and there is no mechanism to stop that. Now I used a clear example, where the SC ruling was what we would all agree with, but the SC can do the same with anything.
Also please explain how you are protecting us all from the whims of the People, when a single election can result in a President who packs the court with zealots of a particular flavor who will rule for the next 40 years? Are you simply trusting statistics that 5 of 9 elderly people don't die within a four year, or eight year span? Or that the Senate and President are never like minded?
I'm guessing that only one of us has a higher degree in History and Political Science, and that its not you. Having said that, I have History books from the last 100 years and six countries. Picking selectively from those, I can document History to be about anything someone wants it to be. I have one that says we had a non-aggression pact with Hitler, and because of that, we were able to land our armies unopposes at Normandy.
Its not the degrees, but the depth of thought that count.
So what type of law do you pracice?
I have. Have you noticed that he's of the opinion that the current federal drug war is not within Congress' powers as they were originally intended and granted?
The Court is given far too much undeserved praise for being non-political, and an objective guardian of the Constitution.
By who? You've accused me of it simply because I submit that they are less subject to the influence of special interest groups.
I'd like to get back to your premise that the Court isn't really unchecked, because the People can always pass Amendments. First, you need to go off in a corner with tpaine and come to grips with your assertion that majority rule canceling out fundamental rights is OK, as long as its a super-majority. Now let's look at your assertion. If the People pass an amendment to the Constitution stating that black people can't vote, and the first case goes before the Supreme Court. The Court will strike down the laws created in the umbrella of the new amendment, because the laws are in violation of the preponderance of the Constitution, and there is no mechanism to stop that. Now I used a clear example, where the SC ruling was what we would all agree with, but the SC can do the same with anything.
What a pantload. Just exactly where in your vision of "how things ought to be" is there any protection of fundamental rights? You wouldn't even require a supermajority and ratification by the States. You want a simple majority of Congress and the president's signature to be enough. If a simply majority of Congress passes a law that says black people can't vote, and the president signs it, what then?
Also please explain how you are protecting us all from the whims of the People, when a single election can result in a President who packs the court with zealots of a particular flavor who will rule for the next 40 years? Are you simply trusting statistics that 5 of 9 elderly people don't die within a four year, or eight year span? Or that the Senate and President are never like minded?
Explain how doing away with judicial review is going to make it any better. The president won't need to pack the court, or even threaten to because they won't be any obstacle to he and a like minded Congress doing whatever they want.
You don't like what the Court has become and the decisions they've made. That much we can agree on. Why do you want to eliminate the system of checks and balances between the three branches of government, and leave the Legislative and Executive branches unchecked when they are largely responsible for the Court being the in shape it is today?
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