No one should disagree with you about that. Jefferson meant only that no generation should attempt to prevent future generations from changing the laws as they see fit. To most people that is obvious. To begin with, we will not be there to stop them. They will and should do as they wish.
I disagree with an objection to a system without putting forth an explanation as to how it should be done another way.
Jefferson believed and I believe that this country can function without granting to the judiciary more power than other branches or states to interpret the Constitution.
For example, in 1973, in a case called Roe v. Wade, the Supreme Court claimed that it had the power to declare unconstitutional a Texas statute that made abortion illegal. I believe that this country could function without the Supreme Court having the power to do that. However, by 1973, most people had grown to accept that the Supreme Court has that power, even though, as Jefferson pointed out, that power is nowhere to be found in the Constitution.
A few months ago, the Supreme Court ruled that homosexuals have a constitutional right to get married. I believe that this country could function without the Supreme Court having the power to do that. Again, however, most people have grown to accept that the Supreme Court has that power, even though, as Jefferson pointed out, that power is nowhere to be found in the Constitution.
All of this goes back to 1803, when the Supreme Court decided Marbury v. Madison and declared that, why, of course, the Supreme Court should have the power to have the last and final say about what is or is not constitutional. Jefferson believed that that case constituted a usurpation of power that is not provided for in our Constitution. I agree with him. At post 479, I described how this country could function without a Supreme Court that has the last and final word about everything constitutional. How did we function before 1803?
If you don't think the courts should determine whether or not a law falls within the permissible allowance of the U.S. Constitution, then who do you think should do it?
I believe that a court should determine questions of constitutionality when that determination is necessary to perform a judicial function - to decide the case before it. If, for example, a prosecutor shows up and says, "Judge, we want to put this guy in a cage for 20 years, but we need this court to give us a piece of paper called Judgement of Conviction along with a sentence. We know that he is guilty because after we tortured him he confessed." In that case, the court should tell the prosecutor that he better have some other evidence because the court does not feel it can constitutionally rely upon a confession procured by torture and is unwilling to do so. That is an example of a court properly determining a question of constitutionality. The prosecutor goes home unhappy and the defendant goes home, too.
I will give you another example. The government attempts to prosecute a fellow for "willfully criticizing the mayor of our fine city." "And, judge, this statute says that it is illegal to say such things about our mayor. This guy is a no-good troublemaker." The judge could properly refuse to proceed with the case because he believes that he cannot constitutionally convict a defendant for exercising his First Amendment rights. That is another example of a court properly determining the constitutionality of a statute. And, if the next day, the prosecutor shows up with another defendant who cursed the mayor, the judge can send the prosecutor home again. A prosecutor of ordinary intelligence will soon catch on and all will be well in our fine city.
We could live under a system where courts restrain themselves. It is not necessary for them to be searching around for new rights and new definitions. I think Jefferson was right about Marbury.
I disagree that the Judiciary has more power. I just point out that they get away with crap because the other two branches won't shove it up their @$$ and break it off for them.
Congress or the President can reign them in anytime they decide to do so, but they never do. Federal Judges only have power to order law enforcement to force compliance, because the President does not countermand their orders.
Were the President to tell the Federal Marshalls to refuse to follow the orders of Federal Judges, what could the Federal Judges do about it except whine and scream?
However, by 1973, most people had grown to accept that the Supreme Court has that power, even though, as Jefferson pointed out, that power is nowhere to be found in the Constitution.
It is axiomatic. It is inherent in the powers granted to the court, while not being specifically named. Just as the word "arms" covers bullets without the need to specifically mention bullets. The court weighs the correct application of laws. That is what it does. The Constitution is merely the highest of these laws to be weighed for application to cases.
A few months ago, the Supreme Court ruled that homosexuals have a constitutional right to get married. I believe that this country could function without the Supreme Court having the power to do that.
That is not a power. That is a deliberate abuse of a power. That is lying, but they get away with it because the other two branches won't tell them to go F*** themselves.
Seriously, If I were President, I would order the Marshalls to refuse to enforce that order. I would inform the States that the court has lost it's F***ing mind, and it should henceforth be ignored, and no Federal action will be taken against any state which chooses to ignore that illegitimate decision.
I would then appeal to congress for the removal of all judges who voted to undermine our law.
That is an example of a court properly determining a question of constitutionality.
That is how it is supposed to work, and it still requires the court to sit in judgement over whether the restrictions of the US Constitution have been complied with.
In other words, you are supporting Judicial review, though you say you are against Judicial review.
You are a hard bird to follow.
We could live under a system where courts restrain themselves. It is not necessary for them to be searching around for new rights and new definitions. I think Jefferson was right about Marbury.
You can't have it both ways at the same time. You have to have Judicial review, and you have to depend on the other branches checking them when they get out of whack. We have a fault in the system, but the fault does not lie in the Judicial review area, it lies in the election process.
We allow Representatives and Senators to get elected that do not have the national interest at heart. We allow them to bribe the stupid and indolent portion of the population with government money, because we "touchy feely" enacted the 24th amendment, the 26th amendment, and while we are at it, the 19th amendment, all of which are disasters that have horribly disfigured what used to be a functional government.
And of course there is the 14th, which is another level of magnitude of a disaster.