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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: 1stFreedom

I think that Scalia would do exactly what you are asking. He sited in one of his recent opinions that the ruling that created the precident was just bad law. I think he said something like, it wasn't one of the courts finer moments.


121 posted on 07/09/2005 4:51:08 PM PDT by Eva
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To: liberallarry
Your belief [that liberals are messing with the bedrock] 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.

Blackstone presumes an authority that is above the law. Lose that ... assert that man's law is "supreme" ... and the bedrock is at least disturbed, if not disregarded.

122 posted on 07/09/2005 4:51:20 PM PDT by Cboldt
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To: Eva

Scalia has explicitly stated he see no problem with Marbury Vs Madison. He called it a 'plagiarism of Hamilton in the Fedaralist'


123 posted on 07/09/2005 4:52:35 PM PDT by Borges
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To: x
We can argue forever about what the law should be and endlessly revise and amend it. But we do need some surety about what the law is at any given time. Who owns the property?

"Who owns the property?" That is a perfect example!

Congress and state legislatures argued for decades whether slaves were property. Some legislatures went one way, some another. Congress changed its view from time to time, banning the importation of slaves in 1808, the Missouri Compromise of 1820, Kansas-Nebraska and popular sovereignty.

Then the Supreme Court stepped in with Dred Scot (1857), invalidated the Missouri Compromise and confusing and contradictory state laws and said a slave bought in the South was property everywhere, thereby imposing slavery on the North. That radicalized the abolitionist movement throughout the North and led directly to turning the country into a failed state for four years. It is not debate and democracy that makes failed states, but the fear that one group's views are going to be overridden by another's by force rather than persuasion.
124 posted on 07/09/2005 4:54:08 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: Borges

I don't think that I understand what you are saying, he called what "plagarism of Hamilton."


125 posted on 07/09/2005 4:55:01 PM PDT by Eva
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To: goldstategop
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.

That sets up a false choice, as between two rulers, which is better. The Constitution says pick neither, because, as an individual, you need not be so bound.

As for the masses, they vote for bread and circuses.

http://www.lewrockwell.com/orig5/davidson1.html <- Part V is concise.

I'm no fan of majority rule, and certainly no fan of democracy.

126 posted on 07/09/2005 4:55:24 PM PDT by Cboldt
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To: Borges

Ok, I see what you are saying. Scalia likes Marbury vs Madison. Well, that may be but he doesn't thing that Marbury vs. Madison applies to bad law.


127 posted on 07/09/2005 4:56:57 PM PDT by Eva
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To: Borges
"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)."

You are mistaking speech, with it's communication of concepts, ideas, truths and expresion, with slander and fraud. Speech is a right. Slander and fraud are violations of rights. Govm'ts only justification is to protect rights. The 1st Amend protects speech, not slander and fraud.

"There are no absolute rights."

Sure their are. Here's a short listing: Life and the individual sovereignty of will that derive from it, self defense and the right to mount an effective defense, (see free speech and the 2nd Amend.) The right to religeous freedom, including expression and exercise thereof.

128 posted on 07/09/2005 4:57:22 PM PDT by spunkets
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To: Eva
He called Marhsall's decision in 'Marbury Vs Madison' a plagiarism of Hamilton in the FP. That's what this article is advocating we get rid of.
129 posted on 07/09/2005 4:58:49 PM PDT by Borges
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To: spunkets
If you commit a crime heinous enough the government can take away your life as well as all the other rights that derive from being alive. By 'absolute' I mean not subject to government usurpation no matter what. We are born with rights which we keep by means of a social contract.
130 posted on 07/09/2005 5:01:23 PM PDT by Borges
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To: Torie

***And what if it clearly isn't Constitutional?


And what if it IS clearly constitution but the SC says it isn't? What then? I know presidents have ignored the SC throughout history. Is that what should be done and do they have the will to do it?


131 posted on 07/09/2005 5:05:20 PM PDT by jdhljc169
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To: Wonder Warthog

Borges said it beautifully, "The amendment process is the final word on the content not the interpretation." Change the content and the point is mute.


132 posted on 07/09/2005 5:07:03 PM PDT by spunkets
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To: jdhljc169
I know presidents have ignored the SC throughout history.

Have they? I know Jackson did and it's a low point in American history. I'd be curious to see a list of these incidents.
133 posted on 07/09/2005 5:08:31 PM PDT by Borges
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To: UnbelievingScumOnTheOtherSide
It is not debate and democracy that makes failed states, but the fear that one group's views are going to be overridden by another's by force rather than persuasion.

Failed states are an artifact of force.

134 posted on 07/09/2005 5:10:52 PM PDT by Cboldt
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To: Borges
We are born with rights which we keep by means of a social contract.

Personally, I give gratitude to God for the fact that I was born in the USA, beause I am more able to freely express my beliefs here than I would be anywhere else on earth.

Serendipity.

135 posted on 07/09/2005 5:14:28 PM PDT by Cboldt
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To: Borges

"Justice Scalia sees no problems with JR."

You are absolutely correct in your opinion...and so is Scalia.

There have been no Constitutional or other governmental challenges to Judicial Review (Marbury)...For the practical application, just look at the Constitutional crisis we would have been in if Bush's first election didn't have the SC having some ending and final interpretation.



136 posted on 07/09/2005 5:14:31 PM PDT by rbmillerjr
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To: Borges

***Have they? I know Jackson did and it's a low point in American history. I'd be curious to see a list of these incidents.

I believe Lincoln did also. I can't think of any others right now, but will see if I can find anything else on it.

Do you have an answer to my other question though? I wondered what the remedy would be in that situation....


137 posted on 07/09/2005 5:15:57 PM PDT by jdhljc169
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To: jdhljc169

It would seem a case of Civil War would be an exception that proves the rule. But the SC has the final authority to interpret the Constitution. That means they win the argument. There are bad decisions just like there are bad laws and bad Presidential appointments. The Republic gets by.


138 posted on 07/09/2005 5:23:24 PM PDT by Borges
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To: Borges
Congress can only limit the Supreme Court through Constitutional Amendment. It's only the Appellate courts they can affect through laws.

You should read the U.S. Constitution, Article III, Section 2, Clause 2. The second sentence therein states: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Thus, the Supreme Court is an appellate court subject to restrictions imposed by Congress--by statute, not amendment. The only areas in which Congress can not interfere (without amendment) are those few areas mentioned in the first sentence of the clause: cases affecting ambassadors, public ministers and consuls, and where a state is a party. That gives Congress an enormous amount of authority over the Court that they have been too timid to use.

139 posted on 07/09/2005 5:24:45 PM PDT by PeoplesRepublicOfWashington (Washington State--Land of Court-approved Voting Fraud.)
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To: Borges
"If you commit a crime heinous enough...

Irrespective of the quality of the crime, legal sanction(s) for commiting the crime are rights violations. The sanctions are justified to protect the rights of all the others.

"By 'absolute' I mean not subject to government usurpation no matter what."

Like? Absolute rights are claims to right, which if taken w/o justification always diminish and alter the nature of individuals to a great extent. Absolute rights are enumerations of various items of the essence of man. They are the rights spoken of in natural law.

"We are born with rights which we keep by means of a social contract."

No. You are born with the rights. If you keep them, it is because a gift was extended to you by your fellows honoring them. You can extend that gift to others, or fail to and suffer their wrath. A contract implies, not right, but priviledge and something earned. Liberals and other authoritarian cons would have folks believe in and talk contracts.

140 posted on 07/09/2005 5:25:06 PM PDT by spunkets
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