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Judicial Review: Time to dump Marbury v. Madison
TakeBackTheCourt.com ^ | 7/9/2005 | Ruben Obregon

Posted on 07/09/2005 3:15:41 PM PDT by 1stFreedom

Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review.

Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison.

Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception.

The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did.

A "strict constructionist" who adheres to Marbury v. Madison and the flawed principle of stare decisis (doctrine of precedent/settled law) won't do any good for the nation. It doesn't matter if George Bush were to fill the court with nine "strict constructionists" if they accepted stare decisis and Marbury V. Madison.

If you want to take the courts back from judicial tyrants, it's time to call for justices who won't be bound by terrible precedent and who recognize the authority of Congress and the inability of the court to rule on congressional legislation.

It's time to call for nominees who refuse to be bound by illicit precedents and illicit power grabs. Now is the window of opportunity to fix the courts, and it will take much more than nominees whose only qualification is that they are a "strict constructionist."

It's essential that you call your Senators and the White House Monday to demand nomination and approval of nominess who reject both Marbury V. Madison and "stare decisis".


TOPICS: Constitution/Conservatism; Government; News/Current Events; Politics/Elections
KEYWORDS: judicialactivism; judicialreview; marburyvmadison; scotus
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To: Borges

>. Justice Scalia sees no problems with JR

Exactly... Lawyers and Judges except JR -- it's a doctrine to them..

Cept it was never given to them..

Judges and lawyers can't think outside of their legal box...


101 posted on 07/09/2005 4:34:29 PM PDT by 1stFreedom (1)
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To: Wonder Warthog

But the point is Marshall and others didn't feel there was a conflict. They felt 'All Judicial Power' means something and interpreted this way. I agree with Marshall and Hamilton. That's what Judicial Power is. It wasn't a big deal at the time if I'm not msitaken. The framers generally saw this to be in line with their intentions. At least if you go by the Fedaralist. Jefferson didn't like it but he was not one of the framers.


102 posted on 07/09/2005 4:34:51 PM PDT by Borges
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To: Cboldt
My point is that the Constitutional system of checks and balances necessarily permits SCOTUS to override Congressional law, and Congress to ovverride SCOTUS (via impeachment), and in between, the people intervene via elections.

You left out the point you made previously that the President does not have to enforce what the Court says, which is another check. (You however did not complete the analysis by noting that Congress can impeach the President, which is a check on the executive abusing the judicial branch. In essence, it should take two of three branches for any decision and not just one. Since at least one of those branches is always elected, the people retain control. I made this point a dozen times in the Schiavo threads. The Bushes should have intervened directly. They had the backing of Congress and the Florida legislature at least to the point of being impeachment-proof. The opportunity was perfect for setting a precedent that would have broken the Judicial Oligarchy and they blew it.)
103 posted on 07/09/2005 4:35:10 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: liberallarry
Re:The SCOTUS ruling upholding all the various State and fed bureaucratic nitpicking laws are clearly unconstitutional "Nothing in law is clear.

Sure it is. The 1st Amend says explicitly that Free Speech shall not be infringed. That means, no exceptions including bureaucratic requiremnets to engage in such speech. It's only unclear to those that are either BSer's, or just plain stupid.

104 posted on 07/09/2005 4:35:50 PM PDT by spunkets
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To: Borges

I could get behind a limited term for Supremes. It seems the longer they sit the more power mad they become. This is demonstrated by how long each and every one of them hangs on to his position before retiring.


105 posted on 07/09/2005 4:36:43 PM PDT by PeoplesRepublicOfWashington (Washington State--Land of Court-approved Voting Fraud.)
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To: UnbelievingScumOnTheOtherSide
You left out the point you made previously that the President does not have to enforce what the Court says ...

Yeah, sorry I didn't explain everything in 1000 words or less. ;-)

106 posted on 07/09/2005 4:38:00 PM PDT by Cboldt
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To: spunkets
There are all sorts of limits to free speech (disparaging American currency...saying the coinage is toxic or disparaging the beef industry to take two examples). There are no absolute rights.
107 posted on 07/09/2005 4:38:30 PM PDT by Borges
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To: Hardastarboard
Stare decisis is a serious problem.

Oh I don't know. It wasn't a problem with the Lawrence decision.

108 posted on 07/09/2005 4:39:31 PM PDT by Tribune7
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To: Cboldt
Still, its a nice thought not to have intefering judges impose the liberal agenda on the country through their own pen what the Left can't secure at the ballot box isn't it? Take away judicial review and the Left has to figure out how to start winning elections instead of running to the courts when Congress and State Legislatures write laws they don't like.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
109 posted on 07/09/2005 4:41:08 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Borges
"But the point is Marshall and others didn't feel there was a conflict. They felt 'All Judicial Power' means something and interpreted this way. I agree with Marshall and Hamilton. That's what Judicial Power is. It wasn't a big deal at the time if I'm not msitaken. The framers generally saw this to be in line with their intentions. At least if you go by the Fedaralist. Jefferson didn't like it but he was not one of the framers."

Congress specifically has the power to limit the areas over which the Supreme Court and federal courts may rule. That authority has never been used, to my knowledge, but it is there in the text of the Constitution.

And "The Federalist" is hardly the only source of illumination on the intents of the writers of the Constitution. There was this little group called "anti-Federalists" who had other ideas--said ideas which resulted in the addition of the Bill of Rights.

110 posted on 07/09/2005 4:42:09 PM PDT by Wonder Warthog (The Hog of Steel)
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To: Wonder Warthog
The SCOTUS has jurisdiction over the State legislatures via the 14th. I mentioned the Amendment process, but then the COnstitution is changed, as it would be with a Convention. Given the Constitution as it is,(which is what this thread is about) SCOTUS has the last word on Constituitonality as far as the legal system goes.
111 posted on 07/09/2005 4:43:18 PM PDT by spunkets
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To: Wonder Warthog

Congress does not have the power to limit the jurisdiction of the Supreme Court only the lower courts. The Supreme Court has 'All Judicial Power in Law and Equity'. Congress can change the number of justices though.


112 posted on 07/09/2005 4:43:34 PM PDT by Borges
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To: goldstategop
Still, its a nice thought not to have intefering judges impose the liberal agenda on the country through their own pen what the Left can't secure at the ballot box isn't it? Take away judicial review and the Left has to figure out how to start winning elections instead of running to the courts when Congress and State Legislatures write laws they don't like.

See US Constitution. Yes, of course what you admire is a good thing, whether a "liberal" agenda or a "taliban" one. In the end, the people get the government they tolerate and deserve. The system of the US Constitution gives per se supremecy to NO branch. It is an awesome system, if only the people understood it.

I don't trust Congress because it represents mob rule.

113 posted on 07/09/2005 4:45:28 PM PDT by Cboldt
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To: Cboldt
I ernestly believe that liberals are messing with the bedrock

Your belief is certainly reasonable. Over the years the Constitution has been made to say many things...and many things have been made legal which were once illegal and vice-versa.

Still, people have been very, very careful about changing the basic language, the basic forms, the basic checks and balances. I think that is as it should be.

114 posted on 07/09/2005 4:45:45 PM PDT by liberallarry
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To: Borges

There has been no legitimate Constitutional law for the past half century or so. The Supreme Usurpers have no authority to amend the Constitution from the bench; thus, all such rulings are null and void.


115 posted on 07/09/2005 4:47:01 PM PDT by PeoplesRepublicOfWashington (Washington State--Land of Court-approved Voting Fraud.)
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To: spunkets
"Given the Constitution as it is,(which is what this thread is about) SCOTUS has the last word on Constituitonality as far as the legal system goes."

And I tell you again, that the LAST word on Constitutionality resides in the amendment process. Don't give me the baloney about the "Constitution as it is". That is weasel-wording. The final say rests with the people of the United States, if they get incensed enough to use it.

116 posted on 07/09/2005 4:48:23 PM PDT by Wonder Warthog (The Hog of Steel)
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To: Cboldt
Do you think the American people are inherently informed by the desires of a mob that they would elect people to Congress who would take away their own freedoms? Judges already are taking it away from them. I fail to see how Congresscritters would make it worse.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
117 posted on 07/09/2005 4:49:27 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: PeoplesRepublicOfWashington

The problem is there's never going to be an agreement about the interpreatation of a text. Congress can pass any law they want. The President has to enforce the law. The Judicial branch however has to interpret existing texts avialble for us all to interpret for ourselves. Therefore which rulings are correct or otherwise will always be in question.


118 posted on 07/09/2005 4:49:40 PM PDT by Borges
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To: Borges
"Congress does not have the power to limit the jurisdiction of the Supreme Court only the lower courts. The Supreme Court has 'All Judicial Power in Law and Equity'."

If the Congress limits the jurisdiction of the lower (Federal) courts, then how does any issue make its way to the Supreme Court for adjudication. Answer---it doesn't.

119 posted on 07/09/2005 4:50:08 PM PDT by Wonder Warthog (The Hog of Steel)
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To: Wonder Warthog

The amendment process is the final word on the content not the interpretation.


120 posted on 07/09/2005 4:51:04 PM PDT by Borges
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