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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

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To: Cboldt
Blackstone presumes an authority that is above the law

The problem is that we must judge ourselves. People have made as many claims about what the authority above the law (if such exists) says as about what the law says.

I prefer to look at the law as part of a system which controls the power of the state. Our way of doing things has been judged by history to be extremely good compared to other ways. Whether it will continue to be so, whether we can adapt to whatever new circumstances we must face, is always unknown.

141 posted on 07/09/2005 5:25:40 PM PDT by liberallarry
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To: spunkets; Wonder Warthog; Borges
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 by spunkets






Even Amendments must be compatible with the principles of the Constitution.

Marshall said as much in M v M, -- that any law 'repugnant', - is null & void.

Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.
142 posted on 07/09/2005 5:27:06 PM PDT by musanon
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To: musanon

Marshall never said that the Constitution was not subject to amendment, any amendment.


143 posted on 07/09/2005 5:31:56 PM PDT by Torie (Constrain rogue state courts; repeal your state constitution)
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To: PeoplesRepublicOfWashington; Borges
" You should read the U.S. Constitution, Article III, Section 2, Clause 2. The second sentence...Thus the Supreme Court is an appellate court subject to restrictions imposed by Congress--by statute, not amendment.

Clause one supercedes and gives both primary jurisdiction and the fundamental powers. They are given w/o exception, or limit, including infringement by Congress. Clause 2 involves other powers and tasks.

144 posted on 07/09/2005 5:31:56 PM PDT by spunkets
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To: Borges
Scalia has explicitly stated he see no problem with Marbury Vs Madison. He called it a 'plagiarism of Hamilton in the Fedaralist'

I agree with Scalia. I didn't always. But I agree only if Scalia recognizes that Marbury also holds that the excutive is under no obligation to obey rulings of the judiciary that the executive considers improper.
145 posted on 07/09/2005 5:33:02 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: musanon
Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.

That is a new one for me. Have a link?

146 posted on 07/09/2005 5:35:54 PM PDT by Torie (Constrain rogue state courts; repeal your state constitution)
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To: musanon
Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.

An Amendment to the Constitution IS the Constitution, silly.
147 posted on 07/09/2005 5:36:17 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: Torie

Who cares? It's nonsense.


148 posted on 07/09/2005 5:37:06 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: Brilliant

The founders intended that the people would be the soveriegn in the Republic they were creating. As such the final arbiter on the meaning of the constitution would be the public. The court assumed this power for itself in the case of Marybury vs Madison. However in reality its hold on this power has always been tenuous because the power does not legitmately belong to them and it can only be maintained through the acquiesce of the public. If the court steps over the line (as it has in the past) the court threatens its very existence. A good example of this happening in the past would be after the infamous dred scott decision the courts ruling were generally ignored by the Lincoln Administration. The Lincoln Adminstration was able to act in this manner because of the state of crisis that existed and because the public had lost faith in the court. The courts main power rests on the need for a neutral party to settle disputes in our political system. When the court acts in a manner that shows a political bias the court endangers this authority. As such there is no need to overturn Marybury v. Madison. The court in recent years has gone a long way to achieve this goal by itself.


149 posted on 07/09/2005 5:37:17 PM PDT by Lennyq (There is no need to overturn Marbury v Madison)
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To: spunkets

Because you're a fellow cheesehead, I'll go easy on you. Just answer me this: To what do you think the words, "In all other Cases before mentioned," in the second sentence of Clause 2 refer?

Forward!


150 posted on 07/09/2005 5:38:21 PM PDT by PeoplesRepublicOfWashington (Washington State--Land of Court-approved Voting Fraud.)
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To: liberallarry
Blackstone presumes an authority that is above the law

The problem is that we must judge ourselves. People have made as many claims about what the authority above the law (if such exists) says as about what the law says.

You are correct in that humans are stuck on earth with nothing but other humans to justify and provide earthly judgement. But to rephrase Blackstone's presumption - there is an authority that most of the people SUBSRCIBE TO, outside of the law. In that context, making law is relatively easy.

My belief is that civilizations that believe and act as though they are the final authority in defining right from wrong are not durable.

151 posted on 07/09/2005 5:39:45 PM PDT by Cboldt
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To: Borges

****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.


I don't think it was for that reason and I may be wrong about Lincoln. I thought I had read it somewhere and will try to find. I did find an article with another example in it.

Jackson in 1932. I found this part in the article interesting. Thoughts?

"But what Hamilton is writing about is the lesser known check of the President over the Supreme Court as outlined in Articles II and III of the Constitution. The Supreme Court is dependent upon the Executive Branch, as is the Congress, to "execute" their wishes. Nothing gets done unless the President agrees."

http://www.renewamerica.us/columns/darr/050324


152 posted on 07/09/2005 5:43:08 PM PDT by jdhljc169
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To: musanon
" Even Amendments must be compatible with the principles of the Constitution."

The principles underlying the Constitution are not law and are frequently ignored. Freedom is abandoned for socialism and it's collection of entitlements, imaginary rights and other nonsense. There is little to nothing in the Constitution protecting the principles underlying the doc. In fact everything you do of consequence today is a friggin' licensed priveledge and not honored as a right. You can't even fix your damn toilet w/o a license, certified and accepted plans, and a friggin' permit. Come election time, you'll have to hire a lawyer and a team of bureaucrats to speak out and be heard, to make sure the jackboots don't end up with justification to toss yer butt in the dungeon.

"Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th."

There's no limit whatsoever to what mads can be made. Once they're made, they're in the Constitution and supercede whatever was there prior to that. The Amendment overrules, or adds to prior entries. That's why it's called amending.

153 posted on 07/09/2005 5:45:34 PM PDT by spunkets
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To: jdhljc169

Me
I don't think it was for that reason and I may be wrong about Lincoln. I thought I had read it somewhere and will try to find. I did find an article with another example in it.


See post 149.


154 posted on 07/09/2005 5:47:11 PM PDT by jdhljc169
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To: Borges
"The amendment process is the final word on the content not the interpretation."

And if the new "content" makes the previous "interpretation" impossible, then it affects the interpretation as well.

155 posted on 07/09/2005 5:48:19 PM PDT by Wonder Warthog (The Hog of Steel)
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To: Borges
But the SC has the final authority to interpret the Constitution. That means they win the argument.

Only because that authority has been abdicated to it. If the executive does not enforce and Congress does not impeach the President for non-enforcement, then the Supreme Court has wasted paper. That is not anarchy, that is a minimum two branches, including at least one elected, sharing power rather than abdicating to an oligarchy in one branch. It is clearly envisioned in Federalist #78, Marbury v Madison and Andrew Jackson's response to Worcester v Georgia (1832) and was violated beginning with Dred Scot (1857). Plessy and Brown (especially its successors) are two legs of the same pair of pants.
156 posted on 07/09/2005 5:49:54 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: spunkets
""The amendment process is the final word on the content not the interpretation." Change the content and the point is mute."

And if the new content makes the current interpretation impossible, it also changes the interpretation as well. Borges is wrong.

And the word is "moot", not "mute". Mute is someone unable to speak.

157 posted on 07/09/2005 5:50:16 PM PDT by Wonder Warthog (The Hog of Steel)
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To: spunkets
It's only unclear to those that are either BSer's, or just plain stupid.

Well then I guess our greatest lawyers are both.

158 posted on 07/09/2005 5:50:17 PM PDT by liberallarry
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To: liberallarry
I prefer to look at the law as part of a system which controls the power of the state. Our way of doing things has been judged by history to be extremely good compared to other ways. Whether it will continue to be so, whether we can adapt to whatever new circumstances we must face, is always unknown.

Societies are complex indeed. I believe there is a spiritual battle going on as well, a literal battle over our souls.

I think all human endeavors are flawed. After all, we are human ;-)

159 posted on 07/09/2005 5:51:17 PM PDT by Cboldt
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To: musanon
"Even Amendments must be compatible with the principles of the Constitution."

Wrong. Amendments can change any aspect of the Constitution. There are no limitations on the amendment process.

"Marshall said as much in M v M, -- that any law 'repugnant', - is null & void."

A Constitutional Amendment is not a "law". It is a completely different animal.

"Theoretically, the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th."

Nope, 'fraid not. Amendments trump the SCOTUS, hands down.

160 posted on 07/09/2005 5:55:51 PM PDT by Wonder Warthog (The Hog of Steel)
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