In regard to revisiting Marbury v. Madison, I shocked some Freeper last week when he asked me whether or not I thought we should revisit that case and I responded, YES.
Marbury v. Madison was a UNANIMOUS decision by the Supreme Court. Had it not been UNANIMOUS, I suspect that Congress would have pushed back immediately and we would have had a constitutional crisis on our hands.
Congress has power to control the courts including the Supreme Court. Congress can determine how many members should be on the court and cases in which they have original and even appellate jurisdiction. So there is no need for a Constitutional Amendment to reign in the abuse of Power by the Supreme Court. All we need is a bunch of Congressmen and a President who are willing to go to battle with the court when it clearly exceeds its authority such as we have seen in Roe v. Wade and Obergefell.
I would propose first of all that when there is a challenge to the constitutionality of a State Law, that no lower court can have any jurisdiction to hear the case or the appeal. That ONLY the Supreme Court can hear it.
Secondly I would limit the jurisdiction of the court in accordance with the Standard Set by Marbury v. Madison. All criminal trials in this country require a unanimous verdict from the trial court. Anything less than a unanimous verdict results in a mistrial and the defendant is either tried again or released.
I would propose that Congress use its powers to limit the jurisdiction of the Supreme Court in regard to allowing it to make case law overturning any State or Federal law by declaring it unconstitutional. They could make that a much harder burden by requiring that in order for the Supreme Court to issue a valid rescission of any State or Federal Law, that the Supreme Court’s opinion must be Unanimous. That would eliminate all these 5-4 decisions that change the entire future of our civilization.
Further they could limit the scope of any Supreme Court decision on the Constitutionality of a State Law by limiting the effect of the Court’s holding only to the State which was part of the proceeding before it.
Congress could also pass a law that in the event that there is not a unanimous decision on the constitutionality of a law, that Congress would have the power to ratify any decision of the Supreme Court which resulted in a majority other than unanimous. This would eliminate entirely the idea that the Supreme Court has the final say. The PEOPLE should have the final say and in a republic, the people are represented by their elected officials, not some appointed oligarchs.
The Supreme Court might attempt to rule such a law unconstitutional, but then in order to do that, they would have to reach a unanimous verdict.
But there are ways to revisit Marbury and there are certainly legal ways for congress to reign in the court. Making their job EXTREMELY difficult will obviously reign them in quite a bit.
These are powers that Congress has but the question is can we find enough congressmen with the courage to do the right thing.
Right now I don’t see that we could get more than a handful who are willing to challenge the current legal zeitgeist.
We elect men into high office who don’t have a functional moral compass. Its hard to find a structural answer to that.
The only thing that works, is for people who do have a functional moral compass to push back.
AND......... the Presidency..
Congress is BOSS unless they are someone's .... " BITCH " Congress needs to go ROGUE..
DEFUNDING every thing from Congressional AIDES to K-Street and Supreme Courts PERKS..
AND.... most of the Executive Branch Agencys..
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**Uncle Sam is a pervert and an ADDICT..
Needs... Halfway House.. a time out..
an intervention..
by Ted Cruz
Indeed, a constitutional crisis that I would not be surprised President Jefferson would have worked "behind the scenes" to foment. This avowed champion of co-ordinate, separate yet equal branches would, in all likelihood, have ignored any writ of mandamus delivered to him, had the Court decided Marbury the other way — thus to undermine the standing and reputation of the Court. We must not forget that John Marshall had been secretary of state in the Federalist Administration of John Adams. Which, given the political climate of the day, meant that Marshall was Jefferson's enemy. Indeed, apparently the latter detested the former. So it was also personal on TJ's part, not just political jockeying for preeminence.
You wrote:
I would propose that Congress use its powers to limit the jurisdiction of the Supreme Court in regard to allowing it to make case law overturning any State or Federal law by declaring it unconstitutional. They could make that a much harder burden by requiring that in order for the Supreme Court to issue a valid rescission of any State or Federal Law, that the Supreme Court’s opinion must be Unanimous. That would eliminate all these 5-4 decisions that change the entire future of our civilization.What a marvelous idea! This, and your other proposals, would certainly rein in this runaway Court. And of course, you are so right that Congress has the constitutional power to effect such measures. But the problem seems to be: How many defenders of the Constitution are there in Congress, these days? I could name but a few.
So nothing gets done....
If Congress refuses to address SCOTUS's assault against the Constitution, thus the liberties of the States and the People, then maybe there is no other real alternative to an Article V Convention of the States.
That shouldn't be necessary, and wouldn't be necessary, if Congress would only do its job.
But if Congress fails, then it's up to the States and the People to rectify these wrongs. The Article V COS is the constitutional means to do so.
Thank you so much, P-Marlowe, for your truly wonderful ideas!