[JmyBryan]

I vaguley remember reading that (some of?) the framers considered the Presidential veto the way to determine constitutionality of laws. They somewhat naively believed that the POTUS would be beyond partisanship, given he represented all the States.

Anyone know more on this?

[m1911]

At the Federal level, it should work as a three way veto, IMHO. The SCOTUS becomes the final arbiter because by Congress passing and the Pres signing, they have shown that they consider a law Constitutional. The SCOTUS's only way is to rule on the law, although I think some adjustment to the tradition of waiting for a case to bubble up through the courts could use some work, but I haven't really thought it through.

When it comes to ruling on State laws, things are more difficult because the SCOTUS becomes the only Federal power involved.

[Ohioan]

While John Marshall stepped in and asserted the concept of Judicial Review, it was a bit of an overreach. What should, however, be recognized in my opinion, is that there is an inherent element of what Marshall established, in the very act of considering a case, brought based upon a legislative enactment. Obviously, the Justices are bound by their oaths of office--just as Congress and the President are bound by their oaths of Office. Thus, if the Justices believe that to enforce or apply a law would violate the Constitution, their oaths require them to decline to apply such a "law."

Such refusal would be tantamount to what has taken place since Marshall. The refusal would be a precedent, and if followed faithfully, would be tantamount to a pragmatic invalidation of the "law."

But note, here: The Congress and President are bound by the same oath. Consequently, you have multiple checks on the application of Government. Even as the Supreme Court--or for that matter, any local Court--is honor bound upon their oaths, not to enforce or apply legislation believed to be unConstitutional; so too the President is honor bound not to apply any legislation he deems to be unconstitutional--and not to apply a judicial decision that has the effect of making new law, if he feels it to be in error. (This is not an issue with the Rehnquist Court, which has not been legislating. But it was very much an issue with the Warren Court, which clearly did.)

Of course, Congress has no business passing legislation that is unConstitutional in the first place.

The bottom line is that if Washington were full of men of honor, we would not have most of the laws that are in the United States Code, today.

As for Gephardt or Kucinich ruling by decree? The day after either of them is elected, will be the day that every forewarned patriot takes such action as may be appropriate--with "Committees of Correspondence" to coordinate what is needed. We should be very glad for that "forewarning," because it will also give us all plenty of time to discuss these matters with family members in the armed services, to make sure that everyone understands what the newly elected intends, etc..

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