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To: Huck

You still don’t know the purpose of government.

So you don’t think the US government should include a judiciary?


152 posted on 12/22/2009 6:38:38 AM PST by Jacquerie (Support and defend our Beloved Constitution.)
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To: Jacquerie
I think it's obvious that unchecked judicial review is a fatal flaw. Here's Jefferson, arguing against reality, apparantly in reaction to Marbury v Madison:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

And who was it that wrote the opinion? Framer and signer of the Constitution, John Marshall. Here we see Jefferson, like his pal Madison, seemingly non-plussed by the utterly predictable and logical application of the Constitution.

He had been out of the country, so I guess he hadn't had the chance to read Antifederalist 80:

They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other. The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

Or Antifederalist 82:

They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion.

Or maybe he simply trusted the arguments set forth by his dear friend Mr. Madison. Fitting, in a way, that Madison should have been a party to the case that officially announced the death knell of his ideas.

What remains for us, those living under the system, is to figure out how to correct the problem. Jefferson himself had no answer. He tried to form one, with his Kentucky Resolutions, but that was improvised, and didn't work. Elsewhere he suggests that judges should be impeached, but that doesn't work either, for the power of impeachment lies within the same national government, and the branches usually are in agreement when power is expanded. He suggested the legislature should be the final decider of the Constitutionality of the laws it passes, but that ignores the power inherent in the other branches. The SCOTUS, as the last resort, trumps all. Some have suggested occasional conventions of the people to decide such questions. Others believe the SCOTUS should have a jury.

There has to be some form of federal judiciary, to decide strictly federal questions. In the old confederacy, judges were temporarily appointed by the Congress for that purpose, and their jurisdiction was quite limited. I think if it were truly a federal system---a confederacy---you could let the Congress decide for itself on questions of "constitutional" meaning. What rules one might want to govern such decisions, I'm not sure. Unanimous consent? Majority? Super-majority? Maybe first the Congress, then the state legislatures? It's an interesting question. What is clear is that what we have is, as Jefferson described it, despotic. Pity he and his friends didn't see it coming.

156 posted on 12/22/2009 6:57:25 AM PST by Huck (The Constitution is an outrageous insult to the men who fought the Revolution." -Patrick Henry)
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