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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: Brilliant
If they were faced with the prospect that the Congress and the President would no longer accept the Marbury v. Madison decision, then they might moderate their extremism.

Fact is that the decision was NOT accepted at the time it was issued and Mr. Marbury NEVER recieve the commission he had sought. President Madison noted their ruling then ignored it. It wasn't until the 20th century that this ruling began to be abused by activists on the court!

And the fact is that it's the acceptance of Marbury by the Executive and the Congress that gives the doctrine its bite. If the other branches of government would not accept it, then it's meaningless.

AMEN and amen!

21 posted on 07/09/2005 3:37:11 PM PDT by Bigun (IRS sucks @getridof it.com)
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To: Borges
Someone would have to bring a lawsuit.

That's just to get it in front of the court. Once there all sorts of mischievous can be done.

...and we have to have a judicial body monitoring them.

And, who monitors the judicial body?

What we have now is a system of unaccountable jurists who "interpret" the Constitution as they see fit.

22 posted on 07/09/2005 3:40:21 PM PDT by Noachian (To Control the Judiciary The People Must First Control The Senate)
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To: liberallarry
Stare decisis gives consistancy and stability to law. Very, very important.

Statutory law, yes.

Constitutional law, no.

23 posted on 07/09/2005 3:40:25 PM PDT by Republic If You Can Keep It
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To: 1stFreedom
Marbury v. Madison is misconstrued in the vast majority of citations. The crux of that case was "As between Congressional and Constititional law, which should prevail?" Marshall come down on the side of "Constitutional," and said that in similar cases (choosing between Constitution and Congress), the court was duty bound to be constrained by the superior.

The phrase, "What the law is," is to choose between the Constitution and the Congress. In the case at hand, the plaintiff was asking for the Supreme Court to exercise a power that the Constitution did not grant to the Supreme Court. The plaintiff was (rightfully) denied the remedy requested.

24 posted on 07/09/2005 3:41:16 PM PDT by Cboldt
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To: Borges
What is feasible is a Constitutional amendment limiting Federal Judges to one 12 year term.

Term limits work for other politicians, why not judges?

A 12 year term limit would give judges the "independence" they say they need, while automatically limiting the damage any one judge can do. It also has the benefit of bypassing a do-nothing Congress.

25 posted on 07/09/2005 3:43:56 PM PDT by Noachian (To Control the Judiciary The People Must First Control The Senate)
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To: Noachian
The Framers were so suspicious of the judiciary that they gave it the least authority, and feared it the most.

Well, the Congress scares me just about as much as the Judiciary. Unfettered power in the hands of our money-grubbing, never seen a social program I wouldn't spend money on, hope to find a new way to screw the American people today Congess-critters is certainly the path to destruction.

26 posted on 07/09/2005 3:44:57 PM PDT by Originalist (Clarence Thomas for Chief Justice!!)
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To: Borges

bump


27 posted on 07/09/2005 3:45:14 PM PDT by musanon
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To: Noachian
Interpreting the Constitution is their function. what is 'Judicial Power' then? Advisors? the Executive and Legislative Branches don't need this. They can hire their own legal team to advise them. We may as well get rid of the Federal court system then. You'll never have everyone agree on one single interpretation of a text. If you could then we wouldn't need a Judicial branch at all. Again who would you have as the final arbiter of Constitutional issues? Congress? A national plebiscite? Congress can pass some ridiculous law and we have to wait up to 2 years to vote them out? No way.
28 posted on 07/09/2005 3:47:01 PM PDT by Borges
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To: Originalist
Well, the Congress scares me just about as much as the Judiciary.

You can get rid of an elected congressman, how do you get rid of an unelected judge with a God complex?

All politicians should be disposable in some fashion, but judges hang on like leeches.

29 posted on 07/09/2005 3:49:03 PM PDT by Noachian (To Control the Judiciary The People Must First Control The Senate)
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To: liberallarry
Stare decisis gives consistancy and stability to law. Very, very important.

But stare decisis can be abused, as O'Connor did in Planned Parenthood v. Casey.

30 posted on 07/09/2005 3:50:09 PM PDT by Cboldt
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To: 1stFreedom
"Nevertheless, it(judicial review) was not included in the Constitution. Understand that many ideas were debated, but few made them into this vital document."

Oh?

Article. III.
Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The fact is, that SCOTUS is the Constitutional last word on the Constituitonality of any particular law. The concept(s) was contained in English Common law.

The 14th was added to include controversies between a particular State and any citizens thereof. The reason was to protect federally recognized rights that were being trampled by the States.

31 posted on 07/09/2005 3:50:45 PM PDT by spunkets
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To: 1stFreedom

This is one of the best editorials I've ever read on Marbury v. Madison, and even better is the fact that it's short and straightforward.


32 posted on 07/09/2005 3:50:53 PM PDT by wagglebee ("We are ready for the greatest achievements in the history of freedom." -- President Bush, 1/20/05)
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To: Noachian
You can get rid of an elected congressman, how do you get rid of an unelected judge with a God complex?

Well, the correct response is "impeachment". OTOH, how do you make that happen when almost half the country is cheering the activists on? I'll admit I don't know.

33 posted on 07/09/2005 3:51:01 PM PDT by Originalist (Clarence Thomas for Chief Justice!!)
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To: Noachian

Constitutional one twelve year term then. You would get support from both sides for this since each would think it limits the 'damage' the other side can do. And with every Presidential election we would know exactly what's at stake.


34 posted on 07/09/2005 3:51:35 PM PDT by Borges
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To: 1stFreedom
I just found a link to Marbury v. Madison, and did not realize how awful that decision is!

I guess everyone was afraid George Washington would become a King. Unfortunately, it appears he appointed 9 Kings to decree Marbury v. Madison and thereby negate the constitution of the United States the first time the Supreme Court found itself in a bind...

My link for Marbury v. Madison is:

MARBURY V. MADISON

I use all Caps for the link (http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm) because it is what I consider informative...

35 posted on 07/09/2005 3:52:01 PM PDT by topher (One Nation under God -- God bless and protect our troops)
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To: Noachian
You can get rid of an elected congressman, how do you get rid of an unelected judge with a God complex?

In a word, "impeachment." Ultimately, impeachment is meant to be a political tool too, if the judges don't follow the will of the people.

36 posted on 07/09/2005 3:52:35 PM PDT by Cboldt
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To: Brilliant
Someone has got to be the final authority on the interpretation of the Constitution. If it's not the Court, then who is it?

That is flawed thinking. *ANY* "final authority" is a dictator. In a representative democracy everything should be open to eternal debate by the people and their representatives.
37 posted on 07/09/2005 3:52:57 PM PDT by UnbelievingScumOnTheOtherSide (Give Them Liberty Or Give Them Death! - Islam Delenda Est! - Rumble thee forth...)
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To: Noachian
You can get rid of an elected congressman...

You may be able to get rid of him, but the one you put in his place will love the power and money just as much. Term limits on all branches of government is the best answer.

38 posted on 07/09/2005 3:53:22 PM PDT by Originalist (Clarence Thomas for Chief Justice!!)
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To: 1stFreedom
" stare decisis"

Has nothing to do with judicial review. Judicial Review was given to the SCOTUS in the Constitution. Stare decisis includes decisions made under the fundamental fact of jurisdiction and power given the SCOTUS by the Constitution.

39 posted on 07/09/2005 3:55:10 PM PDT by spunkets
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To: Borges
Congress can pass some ridiculous law and we have to wait up to 2 years to vote them out? No way.

Remember that it was a majority of judges who "passed a ridiculous law", from the bench, making abortion legal, and 40+ million souls have died as a result.

So, judges have literally gotten away with mass murder, and we have no way to "vote them out" after 40+ years.

You're so worried about the Congress that you seem to gloss over the misdeeds of the judiciary without a blink of the eye.

40 posted on 07/09/2005 3:55:11 PM PDT by Noachian (To Control the Judiciary The People Must First Control The Senate)
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