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".
Unless it advances the liberal agenda, then it can be overturned without much thought of course. Even if it was decided just the opposite by essentially the same justices 17 years prior. See Bowers v. Hardwick (1986) overturned by Lawrence v. Texas (2003).
-- 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.
This prose is just so elegant. It's a keeper. But does anyone know what it means?
What part do you consider awful? And how do you reconcile what was illustrated in the opinion?
Here's a portion of the end:
Suppose Congress passed a law saying that Senators no longer had to be elected, but could serve for life. Without Marbury vs. Madison no court could overturn such a power grab and Congress could do anything they wanted no matter what prohibition the Constitution imposes on them. The courts have failed us by not limiting Congress when they have exceeded their limited delegated powers (and that they have done many, many times) -- but Marbury vs Madison was the correct decision.The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to oey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?
The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
But a representative unconstrained by judicial review would also be unconstrained by the limits placed on him by the Constitution as well. They could simply nullify any election by legislation that didn't go their way.
An amendment would be pointless since lacking MvM oversight, Congress could do what they wanted regardless of what restraints the Constitution or a new amendment would impose.
They did use that power once -- in 1787. They called for a Constitutional Convention to amend the Articles of Confederation to fix the tax problem. But those gathered for the Convention started out not by amending the Articles of Confederation, but by throwing the whole thing out and starting from scratch. In all probability the same thing would happen with a new convention and we would end up with a 150-page beast like the European Union Constitution guaranteeing everyone a new pony, making "Kumbaya" the National Anthem, and declaring smoking a capital crime.
ping for later.
I say again. The Supreme Court CANNOT nullify Amendments to the Constitution.
If three-quarters of state legislatures decide to do so, they can convene a new Constitutional Convention, throw out the entire existing Constitution, and start over from scratch.
Which is not the same thing as "a law passed by Congress". I say again---Amendments to the Constitution are NOT the same as laws passed by Congress. The Supreme Court has no power to nullify such.
The difference being that the Articles of Confederation contained no authorization for them to do so---they basically usurped that authority. The Constitution, OTOH, specifically contains authorizing language allowing the states to do exactly that--no usurpation necessary.
bump
I am humbled by the breadth of knowledge and analytical ability of my fellow Freepers. Good job, guys.
Amen!
I was in a discussion the other day where I could not get a fellow FReeper to understand that 'jury nullification' is NOT the same thing as *anarchy*.
I was told "The people don't have the authority to decide the law!"
Pretty scary!
My problem with not having judicial review is what should happen when Congress passes yet another unConstitutional law -- wait until Congress repeals the bad law? They don't seem to have much of a history of doing that.
The Constitution says, in plain english, what it says my friend your opinions, and Hamilton's, not withstanding.
Amen brother!
Which is not the same thing as "a law passed by Congress".
Both statute law, - and Constitutional law, - are subject to judicial review.
I say again---Amendments to the Constitution are NOT the same as laws passed by Congress. The Supreme Court has no power to nullify such.
The USSC has the power of judical review for all cases arising before it. The Constitutionality of the 18th was questioned, and they reviewed the case.
So. The court did NOT nulify the Eighteenth Amendment, now did it??
The fact that they did review the case proves my point tho; - They were deemed to have that power.
A failed "lawyer trick" is NOT a precedent in jurisprudence. I say again. The Supreme Court CANNOT nullify Amendments to the Constitution. If three-quarters of state legislatures decide to do so, they can convene a new Constitutional Convention, throw out the entire existing Constitution, and start over from scratch.
The majority rules? -- Nope, not in this Republic, and not over our basic Constitutional principles.
As Marshall said in M v M:
" --- The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. --- "
I think some of the Founders did see it the way you see it. However, I don't see how that could work. Marbury itself did work at least to a large degree for about 150 years. It was only after the Court decided that it was not bound by the law, and that it was in charge, that the problem arose. What we need to do, really, is revamp not only the courts, but also our law schools. When I was in law school, they taught us that the Constitution was a "living document," and that the courts had a responsibility to change their interpretation of the Constitution in order to meet the challenges of the times, and to "do justice."
Now we have a whole generation of lawyers which thinks that's the way things should be, and that the legislature and executive are merely road bumps on the Court's journey to utopia.
The New Deal apologists tell us Congress can do pretty much anything it wants, as long as the SC will declare it "Necessary and Proper".
The Supreme Law of the Land is a three pronged fork, the Constitution in it's entirety and the laws and treaties passed by Congress and signed by the executive. The Constitution gives no such power to the SCOTUS which authorizies them to participate in the Amendment process as outlined in that Constitution. None, nada, zippo.
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