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".
I did, Bull Connor's South. To which you replied, "Ah, I smell cultural bigotry. That says a lot about you right there."
Cultural bigotry? Rubbish! Rubbish on the same level as was promoted and protected by Plessy vs Ferguson.
"And if a state did so, provide proof that the citizens were prevented from moving to a state that better safeguarded them."
So, you're one of those, "love it, or leave it folks." What State do you think respects the rights of their minorities?
You've mistaken the 14th with the Welfare and Commerce Clauses.
Well, a lot of really high-powered Constitutional law professors agree with me. I suggest you go and actually READ the Constitution again instead of pulling ridiculous arguments out of your rectum.
Three-quarters of the states CAN call a Constitutional Convention--the powers of which are unlimited in any way (except what they choose to impose upon themselves). They can make any change they wish to the Constitution, including throwing it out and starting over.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Nothing in Article 3 gives the SCOTUS veto power on Constitutional Amendments. To claim otherwise is to peer into the penumbra of Saturn and find an oligarchy which replaces a constitutional republic.
That there is no established law.
That two identical cases could be decided differently.
That there is nothing predictable about the law or courts at all.
That searching your house with a bulldozer is fine, but merely knocking on my door is a violation of the 4th Amendment.
Rejecting stare decisis means that the Rule of Law means nothing.
Well, both of us can make 'arguments from authority' citing high powered law professors.
Those on my side however, do not want to "eliminate the current Constitution" seeing that they have sworn an oath to support it.
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.
Nothing in Article 3 gives the SCOTUS veto power on Constitutional Amendments. To claim otherwise is to peer into the penumbra of Saturn and find an oligarchy which replaces a constitutional republic.
No one here has claimed "veto power". -- Judaical review by the SCOTUS is an opinion. Such opinions can only be enforced by other branches of government, - fed, state or local.
"I did, Bull Connor's South."
Too vague to base an argument on. I want specific states and time lines as you say "historically". To be "historically" there has to be a nice lengthy time line and a pattern in that time line.
Just to say "Bull Connor's South" is trivial. Also, since you think that the founding fathers accepted state abuse of civil liberties, I think a few prime examples from their time period would be good.
You made the claim, now back it up.
Even before Marbury, the Supreme Court understood that it had the power of judicial review. In Hylton v. United States, decided in 1796, the Supreme Court heard a challenge to the constitutionality of a federal tax law. The Court upheld the law as constitutional, but none of the justices (who included 3 former members of the Constitutional Convention) thought that they didn't have the power to decide if an Act of Congress was unconstitutional.
Plessy vs Fergusson.
It is repugnant to our constitutional republic for the SCOTUS to be issuing opinions on issues not before the court.
Now, who has standing to bring the issue before the court after the states and the Congress have passed such an amendment?
At what point in time would this happen? After the amendment is passed it is the Supreme Law of the Land. Before the amendment is passed, the court has no power to grant cert.
And finally, a SCOTUS that issues opinions on issues not before their court is a rogue court again subject to impeachment en masse.
It is repugnant to our constitutional republic for the SCOTUS to be issuing opinions on issues not before the court. Now, who has standing to bring the issue before the court after the states and the Congress have passed such an amendment?
Do you even -try- to read the previous posts in a discussion?
Back at #198, I posted:
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.
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."
That's fine if you want to beat around the bush and avoid addressing them, but the fact remains that the situation in and similar to Plessy vs Fergusson existed under the govm't they set up. It took the 14th, honesty and adherence to it's intent to correct them.
Certainly but it has no effect on what the constitution says. Roe is "the law of the land" but it can't be found in the constitution. Private property can not be taken except for public use but now it can. Sodomy is not a fundamental right but yet it is. I don't give a rats ass what a rogue court did in 1918. Either you put up the language in the constitution granting the judiciary the power to rule on the "constitutionality" of a constitutional amendment or take your condescending bs somewhere else.
I don't give a rats ass what a rogue court did in 1918. Either you put up the language in the constitution granting the judiciary the power to rule on the "constitutionality" of a constitutional amendment or take your condescending bs somewhere else.
Article III, Section 2 gives the SCOTUS the power of judicial review of ALL laws in cases arising before them.
In fact, I doubt anyone but you has ever objected to their review of the "National Prohibition Cases", or called them a 'rogue court' for doing so.
That is non responsive. The issue is whether of not SCOTUS can strike down a Constitutional Amendment, on any grounds. It cannot, despite what Root in a brief said in 1918. SCOTUS ignored Root it would seem. Sure, SCOTUS can it interpret away into a toothless state. The array of legal tools SCOTUS now has to do what it wants make up a most impressive inventory indeed, and new tools come over the transom, in ever more rapid succession. When necessary and convenient to effect a chosen policy end, invent a new tool. But the tools tend to have a certain complex obscurity, or soaring prose quality, or both, in order to try to keep the wolves a bay. Using the hacksaw in the manner you suggest, is at once unnecessary and counter productive. These guys have left Thomas Edison in the dust as the greatest American inventor.
Power to amend the Constitution was reserved by article 5, which reads:
The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919, is as follows:
We here are concerned with seven cases involving the validity of that amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, which was adopted to enforce the amendment. The relief sought in each case is an injunction against the execution of that act.... The cases have been elaborately argued at the bar and in printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved:
1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.
2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present-assuming the presence of a quorum-and not a vote of two-thirds of the entire membership, present and absent.
3. The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it.
4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.
5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.
In other words, amendments to the constitution made in accordance with Article 5 are not subject to review by courts. Legislative acts enforcing such amendments are to be interpreted by courts. All constitutional. You can read, can't you?
Sheesh, this is getting spooky.
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