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".
See Post 144.
Yes the majority rules in this Constitutional Republic with the one important caveat that rights are not abridged.
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.
The USSC has the power of judicial review for all cases arising before it. [See Art. III]
The Constitutionality of the 18th was questioned, and they reviewed that question. - Sadly, they opined that a repugnant act of prohibition was Constitutional, contrary to all of our principles of liberty.
Fortunately, the people ignored them, and overruled by passing the 21st.
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.
The USSC has the power of judicial review for all cases arising before it. [See Art. III]
The Constitutionality of the 18th was questioned, and they reviewed that question. - Sadly, they opined that a repugnant act of prohibition was Constitutional, contrary to all of our principles of liberty.
Fortunately, the people ignored them, and overruled by passing the 21st.
LOL. I'd like my pony to be a painted one.
You can tap-dance around the issue all you like. The fundamental question is completely clear--the people can amend the Constitution in any way they so choose, and the Supreme Court has no option other than to go along with their fianl judgment.
Well, thus far, they have gotten away with it. However, "the people" finally seem to be having enough of it, and I think the recent decision on Eminent Domain "might" even wake up a few liberals to the dangers posed by judicial activism.
Bush has the opportunity to make a fundamental change, if he chooses to exercise it.
When your plain English is in direct contradiciton to the founders, both in meaning and intent, you're claim is wrong.
Hamilton in Federalist #16:
"...in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void."
So, Mr. Hamilton could never have said this if your plain English claim were true. That's, because the legislature would simply put the unconstitutional legislaiton off limits to the court. Thus avoiding any need for embarking in a conspiracy to undermine the Constitution.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Note that there is no assignment of powers to either the executive or the judiciary, the Amendment process is left solely to the people through their elected representatives. A court granting cert to overturn an amendment should be impeached en masse for cause.
Wrong on all counts. A Constitutional Amendment is a change to the Constitution itself, and thus cannot be over-ruled or changed by the Supreme Court.
The USSC has the power of judicial review for all cases arising before it. [See Art. III]
The Constitutionality of the 18th was questioned, and they reviewed that question. - Sadly, they opined that a repugnant act of prohibition was Constitutional, contrary to all of our principles of liberty.
Fortunately, the people ignored them, and overruled by passing the 21st.
If 3/4th's of state legislatures so vote, they can convene a Constitutional Convention, which can eliminate the current Constitution
Yep, -- that's what they would have to do, in order to pass a 'law' repugnant to our basic Constitutional principles; -- "eliminate the current Constitution".
(and the Supreme Court itself, if they so choose) and replace them with a completely new governing document. You can tap-dance around the issue all you like. The fundamental question is completely clear--the people can amend the Constitution in any way they so choose, and the Supreme Court has no option other than to go along with their fianl judgment.
Tap dancing? I'm not the one here claiming that we can "eliminate the current Constitution". You are.
Impeachment.
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
Marbury v. Madison should not be overturned.
Interpretation of the Constitution rightfully belongs with the Judiciary.
The Founders provided a Constitutional mechanism (albeit a difficult one) to address situations of judicial misconduct. IMHO, that includes judicial activism that deliberately distorts and misinterprets the Constitution. There is no need to overturn Marbury simply because the invertebrates in the Executive and Legislative branches don't have the gumption to initiate judicial impeachment proceedings.
They could rule that it's invalid because it was not legally adopted, but once an amendment is accepted as valid, it's part of the Constitution. The Constitution cannot be unconstitutional, by definition.
The 18th Amendment was a dumb idea, but it was legal. It was proposed by Congress and adopted by the states in the prescribed manner. SCOTUS or any other court had no authority to override it -- the black-letter law was before them, and they were bound by it.
"As in 1912, those remain bad ideas."
That is why I posted FDR's argument. I was seeing people, on Free Republic of all places, making the same points FDR did. I think that any judge sworn to uphold the Constitution ought do exactly that when faced with a conflict between an act of Congress and said Constitution. I do not think they should substitute their own policy preferences for the words of that document; but to remove their check on an overreaching Congress is a remedy worse than the ill it seeks to cure.
Perhaps, for those opposed to judicial review, reading that concurrence from a notoriously leftist President will cause them to reconsider.
Here are three possible remedies that might not be harmful:
1) Inform juries of their power to apply the Constitution, regardless of the trial judge's opinion. This would give the people a more direct ability to hold their government to the limits imposed by that Constitution.
2) Nominate, appoint, or elect, whenever possible, judges at every level who will base the their judgments on a hierarchy of written law, with the U.S. Constitution at the top. Impeach them if they rule outside the law. Apply the same criteria when choosing members of the Legislative and Executive branches. They are all supposed to be bound by the Constitution; they swear oaths to that effect. We ought to hold them to it.
3) Another poster mentioned that the "living Constitution" doctrine is taught in law schools. This needs to stop. Do they also teach "living contracts" whose terms are mutable? If not, pointing out the contradiction should be helpful.
The first remedy should be the easiest, the last the hardest, but we should make the effort on all three.
See my post #230.
It was enacted, because the southern states were trampling on the rights of a minority of their citizens. Perhaps you missed that point. The 14th was intended to put a stop to it.
"why did our founders not install its language in the original bill of rights?"
The States at that time had their own as far as a majority of folks were concerned. They still owned PEOPLE and considered them PROPERTY. They also screwed the Cherokee.
Thomas Jefferson understood what you do not....
...
"Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government. It must rest with the States, as far as it can be in any human authority (letter to Samuel Miller, Jan. 23, 1808)."
Seems ole TJ didn't mind the States violating the principles behind the first Amend. In particular religious freedom and free exercise thereof. The 14th made way for the correction.
"In American federalism, the rights of the individual are secured through the strict limits imposed on the power of the central government by a Bill of Rights and the division of authority between autonomous states and a federal government. As Frank Chodorov wrote, States' Rights are "an essential Americanism. The Founding Fathers and the opponents of the Constitution agreed on the principle of divided authority as a safeguard to the rights of the individual
Chodorov is completely illogical. Historically the States failed to safeguard their citizens rights. The example I gave in the post you replied to was for defendants to have legal representation at trial. Various States failed to provide it. Perhaps you think due process and equal proteciton only applies to rich folks? Some folks more equal than others? How about the klan?
"If the Bill of Rights was intended to place strict limits on federal power and protect the individual from government, the 14th, in effect, defeated that purpose. What it did was to put the power to enforce the Bill of Rights in federal hands, where it was never intended to be. "
Another Chodorov masterpiece? The States weren't bound by the Bill of Rights prior to the 14th and it showed. Regarless of the SCOTUS's piecemeal incorporation and spotty protection of rights, the 14th extended the Bill of Rights all the way down to the lowest local tyrant.
"Chodorov ... If a state wants to outlaw alcohol, then one can move to a state that doesn't. If a state wants to establish a religion, and its own constitution doesn't prohibit this, one can move to a state with a different constitution. Competition in government puts the brakes on folly and abuse and preserves freedom.
The competition in govm't is to make as many friggin' laws as they can. Folks will run out of places to run to. Besides that, a scheme like that, having a remedy to tyrany that amounts to rendering the oppressed refugees, just plain ole SUCKS.
"as Felix Morley observed in "Freedom and Federalism," it nullified "the original purpose of the Bill of Rights, by vesting its enforcement in the national rather than in the state governments." This just about renders asunder the Ninth and 10th amendments – what powers do the states retain if the federal government has gobbled them all up?
Poor friggin' States. Can't deny due process, equal protection, right to bear arms, freedom of speech, press, religion, trial by jury, ect. no more. Cry me a river!
"When the federal government became the arbiter of individual rights – freedom of religion included – the doctrine of limitation of powers was badly damaged"
The doctrine sucked in practice as far as rights protection went. Now there's meat in the Bill of Rights, because the BoRs was extended down to the lowest petty tyrant.
"government – especially centralized government – is the natural enemy of natural rights."
Yeah, Bull Connor's South was a real friend of rights for all their beloved citizens. Then there's the all the other nameless petty jackboots all over the country that got their "powers" nipped. Too bad.
"Why not just erase state lines and state legislatures and make this just one big area ruled by Washington D.C.? That is what the 14th amendment is pushing towards."
The 14th extends rights protections, it does nothing else.
That's not a definition folks, other than socialists, accept. The Declaration of Independence says, "We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness-That to secure these Rights, Governments are instituted among men, deriving their just Powers fron the Consent of the Governed, that whenever any Form of Govm't becomes destructive to these ends, it is the Right of the People to alter, or abolish it, and to institute a new Govm't, laying the foundations on such principles, and organizing it's powers on such form, as to them shall seem most likely to effect their safety and happiness."
Those unalienable rights are natural rights. They are absolute rights. Yet, the ones who created this doc did not hold them to be unalienable in the case of those engaged in rights violations, which were and are refered to as crimes. If the only unalienable right was conscience, life and liberty would not be included in the DoI and in fact the doc could never have been penned. The king, after all, could not deny them the right. The king did unjustly deny exercise of the right, which is the sovereignty of will, evidenced by liberty and the pursuit of happiness present by virtue of the absolute right to life. Simple right is simply a minor right contained within an encompassing absolute, or natural right.
"You have the rights to life, liberty and property, but can be deprived of any or all of those by due process of law."
Note that they are still unalienable rights, the absolute natural rights the founders and other folks had and have in mind.
Human sacrifice is no more a right, than health care is. Regardless of any claim of derivation from a real right, the claim is empty, because of it's fundamental violation of the rights of others. Similarly, their is no right to free stuff and services, nor is their an entitlement to those. Entitlement is always to right, regardless of what the con man says.
" Most of the gnarly legal questions we face deal with one person's rights colliding with someone else's."
In most cases one, or more of the rights are not rights. See the human sacrife example, or health care with other people's time, effort and resources. The safety laws are the same. The right is to choose your own safety measures taken. The govm't does not have the right to impose them, for your own good, or to impose them in conjunction with some form of heath care and claim it's to reduce costs. The sovereignty of will of some are necessarily violated unjustly by such schemes.
No 'if' about it. Article VI makes clear that ALL of the Constitution & its Amendments are the supreme law, and that ALL officials, fed & state are bound by oath to support it.
the 14th, in effect, defeated that purpose. What it did was to put the power to enforce the Bill of Rights in federal hands, where it was never intended to be.
All officials, fed, state, or local, have the power to enforce Constitutional law, -- and the duty to resist unconstitutional laws.
Naturally, states can just as well violate individual rights. But, as Chodorov highlighted, there is no monopoly power behind a state's action. If a state wants to outlaw alcohol, then one can move to a state that doesn't. (That's one way for state legislators to ensure that their states will be as densely populated as the moon.) If a state wants to establish a religion, and its own constitution doesn't prohibit this, one can move to a state with a different constitution. Competition in government puts the brakes on folly and abuse and preserves freedom.
It is folly to advocate that people should move if States 'powers' violate human rights.
The 14th Amendment violated this balance, or as Felix Morley observed in "Freedom and Federalism," it nullified "the original purpose of the Bill of Rights, by vesting its enforcement in the national rather than in the state governments." This just about renders asunder the Ninth and 10th amendments – what powers do the states retain if the federal government has gobbled them all up?
Gobbled? - Hype. --- States & or the people retain their powers, -- they can simply refuse to support unconstitutional acts made by fed or local legislators, and fight such infringements in court or through civil disobedience and jury nullification.
They have always had these powers, which will never be lost, as our basic rights/powers cannot be amended away..
You must like an all powerful federal government. Vote for John Kerry this past November?
"Seems ole TJ didn't mind the States violating the principles behind the first Amend. In particular religious freedom and free exercise thereof. The 14th made way for the correction."
Seems ole TJ knew a lot more than you do about individual freedoms...or maybe he was out of his mind when he wrote the Declaration of Independence? I'd prefer his thinking on the subject as opposed to yours. Your argument makes no sense in the realm of individual liberties. You seem to want the FEDERAL government in areas of our lives where it was never intended to go. But then again, you think it is a good thing.
"Historically the States failed to safeguard their citizens rights. The example I gave in the post you replied to was for defendants to have legal representation at trial. Various States failed to provide it."
Provide some examples of states historically failing the safeguards of their citizens. And if a state did so, provide proof that the citizens were prevented from moving to a state that better safeguarded them.
"The competition in govm't is to make as many friggin' laws as they can. Folks will run out of places to run to. Besides that, a scheme like that, having a remedy to tyrany that amounts to rendering the oppressed refugees, just plain ole SUCKS."
A strawman argument. It's the same as market driven forces. The people go where it is best and governments learn from this. We see this today in people flooding states where the welfare and handouts are the best. And how you equate people moving to a more free state with refugees is beyond logic.
"Poor friggin' States. Can't deny due process, equal protection, right to bear arms, freedom of speech, press, religion, trial by jury, ect. no more. Cry me a river!"
So you're saying that our founding fathers made a mistake in the 9th and 10th amendments? Now I know you're grasping at straws. I certainly wouldn't want you to write a founding document...your nation wouldn't last. The way you talk, you seem to think that the states were just lining up to oppress their citizens...yet you provide no examples. How ever did our country survive before the 14th amendment? Why, our nation wasn't really a nation until that hold grail came along....praise Jesus for those radicals that wished to take away state's rights and put the power in the hands of those in those white castles and black robes.
"Yeah, Bull Connor's South was a real friend of rights for all their beloved citizens."
Ah, I smell cultural bigotry. That says a lot about you right there.
"The 14th extends rights protections, it does nothing else."
If you believe that, you're hopeless and beyond help. The 14th Amendment is an abomination and will continue to extend federals into the domain of the states. If people like you have your way, we will all be asking Washington D.C. when we can go to the bathroom.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.