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".
Appealate refers to process, not jurisdiction. An appellate court hears appeals, not original cases. There are and can be no exceptions to jurisdiction and limits on scope of the law, as per the 1st Clause. It's totally illogical to take the second clause as allowing limits and exceptions to the 1st Clause. It would destroy the balance of power intended by the creation of the 3 braches. Congress could rule over them all and do whatever it pleases.
"some in Congress have talked about applying their authority to limit the federal courts by passing a statute that would prohibit the courts from determining whether or not it is Constitutional to keep the phrase, "under God," in the Pledge of Allegiance. What's keeping Congress from using this authority..."
Is the recognition of the rest that it's an illogal train that leads to abandoning all semblence of Constitutional govm't for the creation of a tyranical Congress. One that picks and chooses which laws are open to review according to what indications come from the judiciary.
That would be great, but is most probably impossible. We need to try to put the court under political pressure. Limited terms, for example, but with the ability to be reappointed. Or Congress removing certain areas from the court's jurisdiction. Or the President simply refusing to enforce some court orders.
I'm not familiar with the Lawrence decision. What was it in regard to?
Any Supreme Court decision can be voided by a President and 34 senators with GUTS.
We are clearly operating under differing definitions of "absolute." If the right to religious exercise were absolute, human sacrifice would be a protected religious expression.
The definition of absolute rights does not mean they can not be violated, they can be.
We are clearly operating under different definitions of "absolute." If absolute rights can be violated, does the word absolute mean anything at all?
Absolute rights are inherent and require justification to violate, else they are inviolate.
Rights are inherent. That's why they're rights and not privileges. If a right can be violated with or without "justification," it'a not absolute. Your use of the phrase "absolute rights" is more accurately and more succinctly summarized as "rights."
You need to talk to the Founders who used "appellate" to modify the noun, "jurisdiction."
re. amendments
Actually, ammendments can and do conflict. A simple example is the 21st, which was used to trump 1st amendment protections of speech regarding advertising of liquor. (The courts went both ways on that one, ultimately upholding the 1st amendment.) On a more fundamental level, the 14th poses a good number of problems to the 9th and the 10th.
A similar moment came during the election of 1912, which was, fundamentally, a referendum on the Courts and constitutionalism. Some political scientists see the current anti-court movement as an heir to 1912 and the Bull Moose attack upon the courts.
Actually, 1937 was the Bull Moose's heir, as UnbelievingScumOnTheOtherSide points out, in that, like 1912, it was a protest against conservative courts, whereas today's is a protest against liberal courts. Nonetheless, the ideas and solutions tossed about are ultimately the same: let the majority decide, through legislatures, referenda, etc.
As in 1912, those remain bad ideas.
For a study of 1912's situation, see my:
: .pdf fileSee TR's "New Nationalism" and "Charter of Democracy" speeches from the period (discussed in the paper.) I'll leave you with this comment by Taft on Theodore Roosevelt's anti-court diatribe in his "New Nationalism" speech:
The Constitution's Bodyguard: William Howard Taft and His Defense of the Constitution During the Election of 1912
I am the last one to withhold criticism from Supreme Court decisions, and in the two that Roosevelt selected for his criticism I fully agree with him .... The whole difficulty about the business is that there is throughout the West, and especially in the Insurgent ranks to which Theodore was appealing, a bitterness of feeling against the Federal Courts that this attitude of his was calculated to stir up, and the regret which he certainly expressed that courts had the power to set aside statutes was an attack upon our system at the very point where I think it is the strongest. Indeed, my fear is that in this regard he simply spoke the truth as to his own views.[Sorry, x, me again. I've stayed away from these threads, but this one is especially thoughtful on all sides of the debate.]
Don't forget, though, what he also says there:
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ...
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.
Seems pretty clear that if the judiciary oversteps its bounds, the other branches can ignore it.
Congress can not limit what laws, what part of the law, or what part of the Constitution they can rule on. Judicial review, as was outlined and confirmed in Marbury vs Madison, is impossible with such a proposition. Furthermore the intent of the founders was to have a Constitutional govm't and a judiciary that followed along the lines of it's common law predecessors. Hamilton would never have spoke of the courts as "the bulwarks of a limited Constitution against legislative encroachments" in Federalist #78. There he was arguing for lifetime appointments to protect the judiciaries integrity in judging THE LAW. It's impossible to judge the law if the legislature can, at it's whim, as you claim, place it off limits with a simple majority.
Here's what Hamilton says of the "exceptions and regulations clause" at the end of Federalist #80"; after acknowledging the court has jurisdiction in "all matters arising under this Constitution" and "not just the laws of the US".:
"From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischief can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages."
It appears that particular mischief is underfoot regarding the "exceptions" clause and the general principles are to be trashed entirely should it come to fruition. Allowing the legislature to pick and choose which laws the court has jurisdiction over amounts to removing the court's power under the COnstitution from all powers arising therefrom, to some laws of the US and maybe some arising from the State legislatures.
Obviously. Under whatever definition you're using, there are no absolute rights. That's, because more than a few people can and will violate them.
"If the right to religious exercise were absolute, human sacrifice would be a protected religious expression."
Free exercise of religion is an absolute right. Human sacrifice is not. In short, the sacrificed can't give up his right to life, in the same way one can't voluntarily be someone's slave. It has to the fact they're not free to change their minds after the fact, the inherent fraud involved and the victims are likely to be minors, or equivalently incompetent.
Whats your def of absolute right? Example?
Actually if any one of the three has been penetrated.. theres only ONE option.. You know, the one founders gave us, for just so an occurrence.. They could see no other way and niether can I... The 2nd amendment was not given for target practice.. BUT HUNTING...
No, there aren't. That was my point. Most of the gnarly legal questions we face deal with one person's rights colliding with someone else's. Any right, taken to the Nth degree, will eventually infringe on the rights of someone else.
You have the right to speak, but not to slander. You have the right to bear arms, but not in my house without my permission. You have the rights to life, liberty and property, but can be deprived of any or all of those by due process of law. You have the right to remain silent, but even that is conditional. Ask Judith Miller.
Free exercise of religion is an absolute right. Human sacrifice is not.
Then free exercise is not absolute. If you can't practice human sacrifice, and your faith calls for it, your exercise has limits. Limited is not absolute.
Whats your def of absolute right? Example?
Definition: An absolute right is one that can never be legitimately denied or restricted under any circumstances whatsoever. I'm a reasonably well-educated guy, and I'd like to believe that I understand the word "absolute."
Example: Conscience. That's the only absolute right I can think of. You have the absolute right to hold any religious or political opinion, because your thoughts can't infringe on anyone else's rights. There are limits on how you can talk about or act on those thoughts, which makes all other rights less than absolute.
That is a new one for me. Have a link?
The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920. Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases.
A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer.
Root asserted that the Eighteenth Amendment was simply unconstitutional. Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him."
Root gave a memorable peroration:
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist. Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations. You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench."
A Constitutional Amendment is not a "law". It is a completely different animal.
The Constitution and its Amendments are the "Law of the Land". -- See Article VI.
Fantastic post. It's a keeper. The prose is just so elegant. Root deserves more fame. But of course it's bullshit, and at least in this matter, Scotus presumably managed to avoid crossing a bridge too far, at least here, then. If the polity can't manage booze constitutionally incorporated in its failed empirical experiment, well then, the polity seems rather vestigial in all of its limbs.
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