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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: Borges
Or overruling it with a law that takes away this power the judiciary has assumed for itself by a finding it has no warrant in the Constitution.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
81 posted on 07/09/2005 4:22:12 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Crackingham

And the post modern Court has taken form Marbury only what it wanted -and has ignored the nasty little bit about the framers intending the Constitution to be a rule for the government of the Court as well as of the legislature.
I can't help but wonde r how swift their reaction should
"we the people" actually unite and say-in enough numbers
that the Court has lost it's nut-and has made an unconstitutional decision. They seem to beginning to notice
some are getting restless.


82 posted on 07/09/2005 4:22:22 PM PDT by StonyBurk
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To: goldstategop
Otherwise, the law is presumed to be constitutional.

And what if it clearly isn't Constitutional?

83 posted on 07/09/2005 4:22:48 PM PDT by Torie (Constrain rogue state courts; repeal your state constitution)
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To: Cboldt
But stare decisis can be abused, as O'Connor did in Planned Parenthood v. Casey.

Absolutely. No system can give us complete protection from sins and stupidity. But our system has worked better than all others. Mess with its bedrock at your peril.

84 posted on 07/09/2005 4:23:28 PM PDT by liberallarry
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To: Cboldt
If the final word is to repose somewhere, the legislature should have it. After all, it can change and repeal the laws on the books, can it not?

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
85 posted on 07/09/2005 4:23:34 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Wonder Warthog
FINAL authority lies with the people, via Congress and the state legislatures according to the stated amendment process.

*bump*

You, the framers, I, and probably close to a million others "get it."

86 posted on 07/09/2005 4:24:05 PM PDT by Cboldt
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To: spunkets
The SCOTUS ruling upholding all the various State and fed bureaucratic nitpicking laws are clearly unconstitutional

Nothing in law is clear.

87 posted on 07/09/2005 4:25:17 PM PDT by liberallarry
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To: goldstategop

And who decides if it exceeds its lawful authority?


88 posted on 07/09/2005 4:25:20 PM PDT by Borges
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To: Cboldt
The law may be questionable, it may be in error but unless it exceeds its proper limits, the question of whether the remedy is just is NOT for the courts to decide. It is up to Congress to decide if the law ought to be changed.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
89 posted on 07/09/2005 4:26:34 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop
If the final word is to repose somewhere ...

I pick Constitution. In a dispute between the branches, I choose paper/scissors/rock.

90 posted on 07/09/2005 4:27:21 PM PDT by Cboldt
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To: Borges
"MvM does not prevent amending the Constitution."

No, it doesn't. But MvM should never have been decided the way it was. It was a sheer usurpation of power by John Marshall. The correct response, as I said, should have been a recommendation from the Supreme Court laying out the existence of a Constitutional conflict (or lack of authority), and let the Congress correct the situation via. the amendment process.

91 posted on 07/09/2005 4:27:41 PM PDT by Wonder Warthog (The Hog of Steel)
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To: goldstategop
"You're talking about lawsuits, legal controversies and issues about how to apply the law. I don't see anywhere in said phrase you cite a mention the courts get to override Congress.

Oh? I don't see any of your enumerations listed in the Constitution. The Constitution says, "all cases in law and equity arising under this Consttution." All is used w/o exception. Also, it refers to the SCOTUS explicitly.

"In the Constitution, to the contrary, it is Congress alone that creates inferior courts, appropriates money to run them, and determines their jurisdiction and the sort of cases they hear. "

The SCOTUS is created explicitly and the powers are for, "all cases in law and equity arising under this COnstitution."

92 posted on 07/09/2005 4:28:31 PM PDT by spunkets
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To: goldstategop
The law may be questionable, it may be in error but unless it exceeds its proper limits, the question of whether the remedy is just is NOT for the courts to decide. It is up to Congress to decide if the law ought to be changed.

Congress makes the law. Why would they change it? ANd who picks "proper limits?" By your argument, Congress does. Therefore, there is never an excursion beyond proper limits.

93 posted on 07/09/2005 4:29:18 PM PDT by Cboldt
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To: Borges
The courts make that finding through the doctrine of ultra vires. They cannot declare a law unconstitutional but they can decide a law that is sloppily drafted or vaguely written exceeds its authority and so cannot be enforced.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
94 posted on 07/09/2005 4:29:23 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: spunkets

>>Judicial Review was given to the SCOTUS in the Constitution.

Do your homework. It was never given..


95 posted on 07/09/2005 4:29:54 PM PDT by 1stFreedom (1)
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To: Cboldt
If we have parliamentary supremacy enshrined as our doctrine, the limits are established by the law and not the courts. Of course Congress could change the limits if it pleased but at the risk of angering the people who elected it to office.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
96 posted on 07/09/2005 4:31:49 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: spunkets
"State legislatures are irrelevant. The Constitution can be Amended, but then the Constitution itself is changed and the point of judicial review is mute."

Uh, go back and re-read the Constitution. The amendment process requires the accession of both Congress AND three-quarters of the state legislatures--that hardly makes them "irrelevant". And in fact, the state legislatures have the specific power to bypass the Congress completely, by issuing a call for a new Constitutional Convention. Power never before used, but definitely available to those "irrelevant" state leigslatures.

And yes, amending the Constituion "does" make the point of the specific judicial review moot---but it DOES fix the problem in a Constitutionally correct fashion. NOT by have the Supreme Court judges legislate from the bench, as is currently the case.

97 posted on 07/09/2005 4:31:57 PM PDT by Wonder Warthog (The Hog of Steel)
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To: liberallarry
But our system has worked better than all others. Mess with its bedrock at your peril.

I ernestly believe that liberals are messing with the bedrock. The principles that Blackstone summarized are lost in this generation, or before.

98 posted on 07/09/2005 4:32:12 PM PDT by Cboldt
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To: Crackingham

Never trust a lawyer to solve this problem...

They can't think outside of the box...


99 posted on 07/09/2005 4:33:19 PM PDT by 1stFreedom (1)
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To: goldstategop
If we have parliamentary supremacy enshrined as our doctrine, the limits are established by the law and not the courts.

The Constitution of the United States of America does not enshrine parliamentary supremacy.

100 posted on 07/09/2005 4:34:17 PM PDT by Cboldt
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