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".
>. 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...
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.
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.
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.
Yeah, sorry I didn't explain everything in 1000 words or less. ;-)
Oh I don't know. It wasn't a problem with the Lawrence decision.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
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.
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.
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.
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.
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.
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.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
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.
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.
The amendment process is the final word on the content not the interpretation.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.