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".
Nope, libertarian in the tpaine mode favoring an overly strong central government ruled by a few. I can hear them coming a mile away. Maybe even paine reincarnate.
I rest my case, and move for nonsuit.
bump to read tories reply
By the way, I used the term "tools" just to appeal to your blue collar sensibilities. I know you manually dextrious types can relate to tools. When I use them, the all too often outcome is that I hurt myself. :)
btrtp
I am a tool junkie. My eyes light up like a little kids in the toy store when I walk into Lowes or Home Depot. Must be in the jeans. (g)
That's not a definition folks, other than socialists, accept.
ab·so·lute adj.
1. Perfect in quality or nature; complete.
2. Not mixed; pure. See Synonyms at pure.
3. a. Not limited by restrictions or exceptions; unconditional: absolute trust.
b. Unqualified in extent or degree; total: absolute silence. See Usage Note at infinite.
The relevant definition is 3a. -- Not limited by restrictions or exceptions. Which part of that is socialistic? Should I be looking for left-wing bias at dictionary.com?
The Declaration of Independence says,
The Declaration of Independence is a brilliant political document, one of the most succinct and eloquent ever written, but it does not carry the force of law. The Constitution does, and it doesn't speak of absolute or inalienable rights; it speaks of rights that cannot be infringed without due process of law.
In so saying, it tacitly accepts that even the most essential rights can be infringed by due process of law. As they are, every hour of every day. People are fined, imprisoned, and, less frequently, executed under color of law. We have safeguards in place to ensure that these deprivations don't happen casually or erroneously, but they happen nonetheless.
The phrase "pursuit of happiness" is a beautiful bit of rhetoric, but when the Founders came down to writing actual binding law, they settled on life, liberty and property as the three essential rights. Those are the basic three found in Locke, and also in the 5th and 14th amendments.
You can be lawfully deprived of life, liberty or property for the public good, even if you haven't committed or been convicted of any offense. You can be deprived of liberty via a military draft, and of life if ordered to undertake a dangerous mission after being drafted. You're deprived of property via withheld taxes every Friday, every other Friday, on the 1st and 15th, or every quarter, depending on your personal financial arrangements.
You seem to believe that a right can be called "absolute" even if it's lawfully infringed every day. If that's your position, we'll have to agree to disagree on the definition of the word. You haven't offered anything to move me from my position that there are no absolute rights, that, for example, your right to swing your fist is not absolute because it becomes illegal if your fist hits my face. And that, furthermore, it's legal to prevent you from swinging near my face, trying to hit my face or threatening to hit my face.
Human sacrifice is no more a right, than health care is.
The free exercise of religion is a right. Human sacrifice is an age-old practice in some religious traditions. If religious practice were an absolute right, it would include human sacrifice. It doesn't, so it's restricted. Restricted is by definition not absolute. I suspect this is a point on which we'll have to agree to disagree.
No, it just means that the default position is that the last decision stands. The burden is on the side favoring change, but it can be done, and has been done, hundreds of times. Your "for eternity" is a silly bit of rhetoric -- we're not still living under Dred Scott or Plessy, to name the first two to spring to mind.
The alternative is chaos; if precedent is too easily overturned, then no one can know what the law is from day to day. If someone who tries to abide by the law cannot, there's something wrong not with him, but with the law. If I'm a hiring manager, am I required to consider race as a factor in hiring or prohibited from considering race as a factor in hiring? If I can't answer that, the only safe decision is not to even think about hiring anyone.
It's not an idle question. Absent a clear legal guideline, I'm guaranteed to be sued for my decision, no matter what it is. That uncertainty kills business, because the only safe decision is indecision.
I included the usage in the DoI and noted that absolute right was used synonomously with natural right and unalienable right. Those are rights you are born with. If you check Websters they include: perfectly embodying the nature of a thing(~justice). Dictionaries are not the best source to obtain the meaning of the phrase "absolute right".
Here's something from the philosophical lit concerning Locke and the usage and meaning of absolute right. The philosopher uses the adjective, "absolute" to refer to what ought and the justifications. You generally won't find the oughts and justificaitons in a dicitonary. Locke called the people, the absolute sovereigns, but obviously they can and were ruled by tyrants and their sovereignty ended by death at the hands of tyrants.
Socialists diminish the meaning of right to no more than some arbitrary arrived at entitlement according to an arbitrary distributive justice scheme. In general right is different from natural, absolute right, in that you are born with them and they protect the essence of man. Right under the socialist/distributive justice schemes, is based on arbitrary claims of need, and the desires and goals of those in power. Right then, becomes nothing more than your gain from an arbitrary political order.
The purpose of absolute right is to protect the essence and natural sovereignty of will of the individual. The purpose of right under distributive justice schemes amounts to no more than what it takes to run and maintain the scheme and award the rulers.
If your argument is now that the founders didn't know what they were doing and it took some idiots in the late 1860s to fix what the founders did, then you're a kook.
If those idiots in the late 1860s did anything, it was centralize power in Washington D.C., gave the government control over every aspect of our lives, and saddled us with confiscatory taxes that exist to this day. If that's your idea of the perfect country....then you had best go back to school.
Again, you're mistaking the welfare and commerce clauses for the 14th. What do you think of Plessy vs Fergusson, perfect country?
Article III, Section 2 gives the SCOTUS the power of judicial review of ALL laws in cases arising before them.
Torie replies:
That is non responsive. The issue is whether of not SCOTUS can strike down a Constitutional Amendment, on any grounds.
I responded showing that Article III gives the court the review power; -- and that they used it to consider 'striking down' the 18th is undisputable. Furthermore, no one in 1920 questioned that SCOTUS has that power.
It cannot, despite what Root in a brief said in 1918. SCOTUS ignored Root it would seem.
Yep, just as you ignore 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.
Walsh replies:
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.
Or in other words, the court decreed that the Constitution can be amended without any reference to the limitations of the document itself, including the Bill of Rights.
Why you two -want- the government to have such a prohibitory power over our individual liberties remains unanswered.
Y'know, you've got SERIOUS problems with logic, basic knowledge of history, and reading comprehension:
1) your "Marbury vs. Madison" argument fails because it is logically impossible for the Constitution to "be repugnant" to itself, which would be the case of any attempt to "judically review" a Constitutional amendment.
2) your "Eighteenth Amendment" argument fails because the case under discussion was the Volstead Act and NOT the Prohibition Amendment (thanks jwalsh07).
3) "I" certainly nowhere said I "want to eliminate the current Constitution". But the fact remains that the people, via their state legislatures, have the LEGAL power to exactly that.
4) it matters not a whit if you have "sworn an oath" to protect the Constitution. If the people, by means of a legally called Constitutional Convention, decide to toss it out and start over from scratch, your "oath" becomes moot, as they will have used the legal Constitutional power reserved to them by that same "old" Constitution. Any action in opposition on your part to impede that process would place you "in rebellion" against that very Constitution.
1) your "Marbury vs. Madison" argument fails because it is logically impossible for the Constitution to "be repugnant" to itself, which would be the case of any attempt to "judically review" a Constitutional amendment.
Weird logic. Amendments can be written & ratified that are 'repugnant', just as Root argued. You cannot counter his argument.
2) your "Eighteenth Amendment" argument fails because the case under discussion was the Volstead Act and NOT the Prohibition Amendment (thanks jwalsh07).
The case argued not only Volstead, but the constitutionality of the 18th. See Roots argument, which was made before the Court, and proves you wrong.
3) "I" certainly nowhere said I "want to eliminate the current Constitution". But the fact remains that the people, via their state legislatures, have the LEGAL power to exactly that.
That is not a "fact" it is the issue. We cannot amend away our inalienable rights. Eliminating the current Constitution would be an act repugnant to all of our constitutions principles, - an act of rebellion, of civil war.
4) it matters not a whit if you have "sworn an oath" to protect the Constitution.
It matters to me, and millions like me.
If the people, by means of a legally called Constitutional Convention, decide to toss it out and start over from scratch, your "oath" becomes moot, as they will have used the legal Constitutional power reserved to them by that same "old" Constitution. Any action in opposition on your part to impede that process would place you "in rebellion" against that very Constitution.
I'm not the one here saying people can rebel by eliminating the current Constitution. - You say that is "legal", - that same argument as was made in 1860. I'd wager we would have the same outcome as in 1865.
Uh, if you're talking about the "Roots peroration" in your post 273, you'll note that the Court didn't buy his theory. The fact that someone happens to use an argmument in a case has zip effect on Constitutional law unless the Court agrees with its correctness.
They didn't, Rootes party lost, so Rootes theory is invalid, thus you can't quote it as "precedent" to support your position.
"The case argued not only Volstead, but the constitutionality of the 18th. See Roots argument, which was made before the Court, and proves you wrong."
See above.
"That is not a "fact" it is the issue. We cannot amend away our inalienable rights. Eliminating the current Constitution would be an act repugnant to all of our constitutions principles, - an act of rebellion, of civil war."
Not at all. If it is done in accordance with the procedures contained within the Constitution, by means of a Constitutional convention called by the legislatures of three-quarters of the states, it is completely legal. And what makes you think that a new Constituion would entail "amending away our inalienable rights"---for all you know, a new Constitution "might" protect them better.
"I'm not the one here saying people can rebel by eliminating the current Constitution. - You say that is "legal", - that same argument as was made in 1860. I'd wager we would have the same outcome as in 1865."
The significant distinction between the 1860 case and a "Constitutional convention" case is that the Constitution contained no WRITTEN mechanism within itself for states to secede. It "does" contain the stated written mechanism for a calling a convention. ALL of the legal writings I have seen about the eventualities of such a case is that in such a Convention, EVERYTHING is on the table--up to and including dumping the current Constitution and starting from scratch.
Uh, if you're talking about the "Roots peroration" in your post 273, you'll note that the Court didn't buy his theory.
You're defending a court decision that prohibited your right to possess & use alcohol. You don't buy Roots "theory"? The rational mind boggles.
The fact that someone happens to use an argmument in a case has zip effect on Constitutional law unless the Court agrees with its correctness.
You are defending the Courts power to define "correctness"?
They didn't, Rootes party lost, so Rootes theory is invalid, thus you can't quote it as "precedent" to support your position.
Roots "theory" defends individual rights over the power of governments to prohibit. -- You claim that a majority can prohibit anything, & even eliminate the current Constitution.
That is not a "fact" it is the issue.
We cannot amend away our inalienable rights. Eliminating the current Constitutions protections of them would be an act repugnant to all of our constitutions principles, - an act of rebellion, of civil war.
Not at all. If it is done in accordance with the procedures contained within the Constitution, by means of a Constitutional convention called by the legislatures of three-quarters of the states, it is completely legal.
Our right to bear arms can be amended away 'completely legally'? Bet me. -- Such an act would start a civil war.
And what makes you think that a new Constituion would entail "amending away our inalienable rights"---for all you know, a new Constitution "might" protect them better.
Dream on. You arguing for a power to prohibit, not to protect.
I'm not the one here saying people can rebel by eliminating the current Constitution. - You say that is "legal", - that same argument as was made in 1860. I'd wager we would have the same outcome as in 1865.
The significant distinction between the 1860 case and a "Constitutional convention" case is that the Constitution contained no WRITTEN mechanism within itself for states to secede. It "does" contain the stated written mechanism for a calling a convention. ALL of the legal writings I have seen about the eventualities of such a case is that in such a Convention, EVERYTHING is on the table--up to and including dumping the current Constitution and starting from scratch.
As I said, if our basic rights were infringed upon in such a Convention, they would be deemed unconstitutional by all rational men. We would end up in a civil war over civil rights.
.
Enjoy your fantasies.
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