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To: T Ruth
However, the Court's exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.

Well, in fairness to the Supreme Court, it never claimed to be a super-legislature. It claimed that determining the constitutionality of a statute is a necessary judicial function:

"If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each."

In short, the Court's argument is that the judicial branch is authorized only to utilize constitutional laws in the performance of its judicial duties and that it would be improper (in fact, unconstitutional) for the judicial branch to apply statutes which are unconstitutional. The Court did not, in Marbury address the question as to whether its ruling was limited to the case before it or should have broader application.

15 posted on 07/03/2016 3:14:38 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food
The problem begins with Justice Marshall's false statement: It is emphatically the province and duty of the Judicial Department to say what the law is.

Under Article I, section 1, "All legislative Powers herein granted shall be vested in a Congress . . .." Since all legislative powers are vested in Congress, that means no legislative powers are vested in any other branch.

In fact it is the province and duty of Congress to say what the law is. That is called legislation. The repealing of a law is a legislative function. Who would deny that Congress has the power to repeal laws? Since Congress has that power, the Court does not have it.

Therefore as far as the federal government goes, that function is vested in Congress not the courts. So, the Court can interpret a law, including the Constitution, in deciding a case or controversy, but to declare a law void is not within the Court's delegated powers.

So, just as the article which I posted said: "Judge Moore quite correctly observed that Alabama was not a litigant before the Court in the same sex marriage controversy that led to the Obergefell opinion. So while the 16 couples who were before the Court in Obergefell can get their “marriage” licenses, its ruling has no binding authority on the state of Alabama."

The Court has the delegated power to decide cases and controversies, even incorrectly, as in Obergefell. But the decision only has proper effect between the parties to the lawsuit.

16 posted on 07/03/2016 3:41:53 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: Tau Food

>
The Court did not, in Marbury address the question as to whether its ruling was limited to the case before it or should have broader application.
>

No, the ‘Court’ *never* addresses such. It finely choices and cherry-picks that which advance its own narrative.

It used precedent instead of the simple English of the Constitutions as its basis of rulings. Never does it deal in absolutes but, like the lawyer-speak of their teachings, weave their pretzel-logic of verbiage ‘til even the word ‘NOT’ does not mean what it means.

No, the Commerce clause and/or General Welfare somehow BROADEN A1S8 constraints; regardless of all other verbiage (5th/9th/10th), ‘shall not be infringed’ is usurped by ‘govt Right/police powers’ (as if govt has ‘RIghts’)


21 posted on 07/03/2016 6:53:32 PM PDT by i_robot73 ("A man chooses. A slave obeys." - Andrew Ryan)
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