How to replace Judial Review

[C_Clayton_Jones]

The SCOTUS stole that power in Marbury v. Madison.....

And you are also incorrect, as is the OP. See post #88.

No, I am not incorrect. Precedence in other countries is not a valid argument to count the fact that the SCOTUS did not start out with the power to review legislation for Constitutional merits. That was decided in Marbury v. Madison. Sorry, but you simply cannot get away from the fact that prior to that ruling, no such authority was established by the Constitution.

With regards to your other post, a Congress that knowingly passes legislation that will not muster the Constitutional test is a sign of corruption. The ACA had to be so narrowly defined that it proved the corruption of the Congress, and is also where I base My opinion on the lack of Constitutional legitimacy of the law.

Many people don' know it, but the SCOTUS can't actually invalidate a law. They rule it un Constitutional and kick it back to the Congress. The Congress then has the right and ability to modify the law once again vote on it.

But that is a deeper subject than is expected of this thread.

You forgot to cite your source in support of this.

The fact is, as I’ve documented, that judicial review was practiced in Colonial America prior to the advent of the Foundation Era, that judicial review was a part of the Anglo-American judicial tradition for centuries and is thus part of our judicial system today, and that Marbury was the affirmation, not invention, of longstanding judicial review.

If you have objective, documented evidence that judicial review was not practiced in Colonial America prior to the advent of the Foundation Era, that judicial review was not a part of the Anglo-American judicial tradition for centuries and part of our judicial system today, then please feel free to post it for all to examine.

Absent that evidence you are indeed incorrect.

 

[WelfareQueen]

The courts interpreted the law well before the US constitution ever existed. The constitution is itself a law. Bam.

On a related note, how do you propose anything in the constitution is determined to have meaning, or what that meaning is? Let's say that a state passes a law that prohibits the practice of Christianity. People are charged with crimes for practicing Christianity. The defendants argue that the law violates their constitutional rights. How can the court entertain such a defense if they don't have the power of judicial review?

Bam again, you simpleton.

The Court has every right to point out conflict with a State's law and the Constitution. The Court has zero authority to repeal or nullify the law. There is the difference. The Constitution is very clear in enumerated powers that only Congress may pass, repeal, or amend law. The Courts has no such authority. They never have.

No one ever said it did.

But the Federal courts do have the authority to invalidate laws determined to be un-Constitutional and render them unenforceable.

Nope. You can say that all you want. The Constitutional language does not exist.

 

[WelfareQueen]

Wrong...the Constitution would have to be amended to allow for Judicial Review as the Court gave itself that power in Marbury v Madison and that power has never been explicitly authorized in the Constitution or by We the People.

What part of judicial power do you not understand?

Point to the Constitutional language that authorizes judicial review.

 

[M14 Shooter]

The fact is, as I’ve documented, that judicial review was practiced in Colonial America prior to the advent of the Foundation Era, that judicial review was a part of the Anglo-American judicial tradition for centuries...

Can you cite an example where the top judicial venue in the Amercan colonies invalidated a law because it ran afoul of the English constitution, a colonial charter, a state constitution, the articles of Confederation or the US constitution, prior to Marbury?
Case and date, please.

 

[WelfareQueen]

The courts interpreted the law well before the US constitution ever existed. The constitution is itself a law. Bam.

On a related note, how do you propose anything in the constitution is determined to have meaning, or what that meaning is? Let's say that a state passes a law that prohibits the practice of Christianity. People are charged with crimes for practicing Christianity. The defendants argue that the law violates their constitutional rights. How can the court entertain such a defense if they don't have the power of judicial review?

Bam again, you simpleton.

The Court has every right to point out conflict with a State's law and the Constitution. The Court has zero authority to repeal or nullify the law. There is the difference. The Constitution is very clear in enumerated powers that only Congress may pass, repeal, or amend law. The Courts has no such authority. They never have.

That is wrong. The Supremacy Clause of the Constitution gives the federal government the power to strike down unconstitutional laws.

If the Court can't strike down an unconstitutional state or federal law, then the Constitution is unenforceable.

No it does not. The Supremacy Clause is specific only where state law and federal law are in conflict and both parties may have legal standing. The federal Government cannot negate State Law where state law is supreme. Ex: age of consent laws.

 

[WelfareQueen]

What balance of power would there be on the legislative branch if not for judicial review?

The legislature could override a presidential veto, and they could proclaim their own laws constitutional.

One of the primary motives to creating the federal system was a valid balance of powers, if the judicial branch doesn't have a check on the legislature then there really isn't one. A presidential veto is not enough.

All three Branches have a co-equal responsibility to interpret the Constitution. That responsibility has never rested solely with the Judicial Branch nor should it. The answer to your question above is very simple.

There are three Constitutional remedies for bad law.


1. Presidential Veto which requires a 2/3 override by both the House and Senate. This is a very high bar to climb.

2. Legislative action to repeal or amend bad law.

3. We the People can vote the bastards out that made the bad law.


There is no provision or authority granted to the Courts to repeal or nullify existing law under the Constitution. The Court may point out perceived conflict with existing law and the Constitution...but the Court has no authority to repeal or nullify any law. Period. Article III has zero language referencing Judicial Review.

lol, so your belief is that the power to decide whether or not a law is constitutional rests in the hands of the people who passed the law.

jeezus, what next?

The responsibility to interpret the Constitution rests equally in all three Branches of Government. Both the Executive and Legislative Branches of Government have to consider Constitutional questions every day. The current situation with Obamacare is a perfect example. Yes...the people have a responsibility. So do the Courts and the Chief Executive.

 

[WelfareQueen]

You are saying that. I am saying that is in Article III. Article III's grant of original jurisdiction on all matters constitutional (have you read the document) empowers the Court.

I have, and it's not there. Which is why you keep repeating your claim without quoting where it says in Article III or anywhere else in the Constitution that the Courts own in any way interpretation of the Constitution itself.

The Constitution gives the Supreme Court 'judicial power', and judicial review is a power contained therein.

No it is not. There is no explicit authorization empowering any Court to negate law via judicial review. Continuing to say the same thing over and over again will not make it so.

 

[WelfareQueen]

Revoking the 17th won't work.

Article III bedrocks the foundation of judicial review.

The Constitution would have to be amended.

Wrong...the Constitution would have to be amended to allow for Judicial Review as the Court gave itself that power in Marbury v Madison and that power has never been explicitly authorized in the Constitution or by We the People.

Your opinion is erroneous, of course. We the People approved the Constitution with Article III. Judicial Review is inherent in the document. No amendment is required at all.

Argue all you want, but it means nothing.

Point to the language authorizing Judicial Review. Otherwise, your opinion means nothing.

 

[kaz]

anti-constitutionalists...

And from a socialist who considers the Constitution to be toilet paper.

Notice you still haven't quoted the Judicial Review part of Article III you keep saying is there. But deflect away.

You're begging the question by basing it on the premise that there are no such things as implied powers in the Constitution.

Which we know to be incorrect.

The Constitution affords Congress powers both enumerated and implied. See McCulloch v. Maryland (1819).

You might want to Google the term "enumerated" because what you said isn't what the Founders said.

Also, Jake specifically said and repeated on questioning that Judicial Review is not implied, it's in Article III. I keep asking him for the quote, he keeps repeating the truth of his assertion and not providing it.

And you and the birdie don't know what the logical fallacy "begging the question" means. If you start learning to use Google to learn things you don't know, you'll at least learn two new things today.

 

[WelfareQueen]

The Constitution doesn't actually say that, it's only the judiciary's job to interpret the law as it was passed by the legislative branch, it doesn't say they have the power to own interpreting the Constitutional basis for the law. But it's not unreasonable that in their rulings they would question the Constitutionality of a law.

Which is basically, what I am saying. The SCOTUS could interpret how a law was applied in practicality prior to Marbury...however, after Marbury, they took it upon themselves to interpret the validity of the law as it was applied to Constitutional enumeration of power by the Federal Government.

No law has ever been overturned by the SCOTUS, however. Any law deemed 'unConstitutional' by the SCOTUS has been simply kicked back to the Congress. If the Congress won't be bothered to rewrite the law to fit inside the Boundaries of the Constitution, then it is simply dead legislation. Much like Legislation that failed to pass a majority vote.

This may be a distinction without difference, but it is an important one.

I already posted that the Supreme Court had struck down, and upheld btw, laws after ratification but prior to Marbury.

Not true. Specific examples of Supreme Court rulings where this occurred prior to Marbury or I can major bullshit.

 

[kaz]

The Constitution doesn't actually say that, it's only the judiciary's job to interpret the law as it was passed by the legislative branch, it doesn't say they have the power to own interpreting the Constitutional basis for the law. But it's not unreasonable that in their rulings they would question the Constitutionality of a law.

The Supremacy clause requires laws to be constitutional, and with that is the implied power of the federal government to enforce that. Since constitutinality determinations were an established function of the judiciary,

it is logical that the Supreme Court would hold that power under the US Constitution.

It’s both logical and consistent, given the fact that the Constitution is the culmination of centuries of Anglo-American judicial tradition.

And part of those centuries of judicial tradition is the doctrine of judicial review, where judicial review is part of the foundation of our Constitutional Republic.

Indeed, there would be no Constitutional Republic absent judicial review, where the people are subject to the rule of law, not men.

There is nothing consistent with the Founding Fathers having written a document of enumerated powers the people were ceding to the Federal government and then saying, oh, the government can only do those and then a bunch of other "implied" things. And the Supreme court can just keep voting to change it all.

If that is what they meant, they wouldn't have bothered writing a Constitution in the first place. As typical, you're long on wind and short on content.

 

[WelfareQueen]

All it will take is a President to say basically...."Fuck the Court....the Court has no authority to invalidate Law under the Constitution."

Andrew Jackson did this with absolutely no consequence. The Court was impotent and did not challenge Jackson because the Court knew the power of Judicial Review is not Constitutional.

A President can easily defy a ruling of unconstitutionality by simply saying, "I swore an oath to uphold the Constitution. The concept of judicial review is not a power authorized by our Constitution, therefore I am unable to enforce the Court's ruling."

What is Roberts gonna do...drive a tank up on the White House lawn? The Court will not fight it because they have no legal standing. The court gave itself the power of Judicial review. That power can only come from consent of the governed. We have never given that consent.

 

[C_Clayton_Jones]

It's quite bizzare to hear right winger people want to strip the supreme court of authority. If DOMA and ACA cases went the other way I'm sure this wouldn't be the case. I think the Supreme Court has done some wonderful and moving things in the past and it is a completely reasonable check to the legislative branch's power.

If there was no judicial review then we'd just have presidential vetoes, which the legislature could override, it's not enough!

Yes, the OP’s motive is partisan, not legal or Constitutional.

Conservatives, libertarians, and others on the pan-right have been frustrated for decades, as the Federal courts have ruled in accordance with the original intent of the Framers.

And that original intent was for a republican form of government in the context of Federalism, with the Federal government and courts supreme; this was the will of the people, citizens of the United States first and foremost, not merely residents of a state. The authority of the Constitution comes from the people, not the states, where the states may not interfere with the civil liberties of the people:

Once the National Government was formed under our Constitution, the same republican principles continued to guide its operation and practice. As James Madison explained, the House of Representatives "derive its powers from the people of America," and "the operation of the government on the people in their individual capacities" makes it "a national government," not merely a federal one. The Federalist No. 39, at 244, 245 (emphasis omitted). The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404-405 (1819), when it said, "The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." The same theory led us to observe as follows in Ex parte Yarbrough, 110 U.S. 651, 666 (1884): "In a republican government, like ours, . . . political power is reposed in representatives of the entire body of the people."

The political identity of the entire people of the Union is reinforced by the proposition…that…the National Government is and must be controlled by the people without collateral interference by the States. McCulloch affirmed this proposition as well, when the Court rejected the suggestion that States could interfere with federal powers. "This was not intended by the American people. They did not design to make their government dependent on the States." Id., at 432. The States have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere.

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

The people consequently have the right to petition the government for a redress of grievances, and the venue in which the people seek relief from government excess is the Federal courts, where laws perceived to be offensive to the Constitution are subject to judicial review, and if those laws are found to violate the civil liberties of citizens, they are appropriately invalidated.

In addition to being in conflict with the original intent of the Framers, the OP’s premise is both reckless and ill-considered, as it places in jeopardy the civil liberties of all Americans, potentially subjecting citizens to the tyranny of the majority with no recourse to seek relief.

 

[JakeStarkey]

You're begging the question by basing it on the premise that there are no such things as implied powers in the Constitution.

Which we know to be incorrect.

The Constitution affords Congress powers both enumerated and implied. See McCulloch v. Maryland (1819).

You might want to Google the term "enumerated" because what you said isn't what the Founders said.

Also, Jake specifically said and repeated on questioning that Judicial Review is not implied, it's in Article III. I keep asking him for the quote, he keeps repeating the truth of his assertion and not providing it.

And you and the birdie don't know what the logical fallacy "begging the question" means. If you start learning to use Google to learn things you don't know, you'll at least learn two new things today.

Immediately notify SCOTUS, kaz, that it is wrong.

 

[kaz]

Which we know to be incorrect.

The Constitution affords Congress powers both enumerated and implied. See McCulloch v. Maryland (1819).

You might want to Google the term "enumerated" because what you said isn't what the Founders said.

Also, Jake specifically said and repeated on questioning that Judicial Review is not implied, it's in Article III. I keep asking him for the quote, he keeps repeating the truth of his assertion and not providing it.

And you and the birdie don't know what the logical fallacy "begging the question" means. If you start learning to use Google to learn things you don't know, you'll at least learn two new things today.

Immediately notify SCOTUS, kaz, that it is wrong.

Um...did you read the op? That's exactly what I did. Try to keep up.

And where's your quote from Article III showing Judicial Review is in it as you keep claiming? Are you admitting you made it up or just continuing to run and hide?

 

[NYcarbineer]

You might want to Google the term "enumerated" because what you said isn't what the Founders said.

Also, Jake specifically said and repeated on questioning that Judicial Review is not implied, it's in Article III. I keep asking him for the quote, he keeps repeating the truth of his assertion and not providing it.

And you and the birdie don't know what the logical fallacy "begging the question" means. If you start learning to use Google to learn things you don't know, you'll at least learn two new things today.

Immediately notify SCOTUS, kaz, that it is wrong.

Um...did you read the op? That's exactly what I did. Try to keep up.

And where's your quote from Article III showing Judicial Review is in it as you keep claiming? Are you admitting you made it up or just continuing to run and hide?

"The judicial Power of the United States shall be vested in one supreme Court..."

"Judicial Power" in this context implies the power of judicial review. Since implied powers are a reality in the Constitution,

a statement in the Constitution that implies a power is a statement putting that power into the Constitution.

 

[Contumacious]

Wrong...the Constitution would have to be amended to allow for Judicial Review as the Court gave itself that power in Marbury v Madison and that power has never been explicitly authorized in the Constitution or by We the People.

Your opinion is erroneous, of course. We the People approved the Constitution with Article III. Judicial Review is inherent in the document. No amendment is required at all.

Argue all you want, but it means nothing.

Point to the language authorizing Judicial Review. Otherwise, your opinion means nothing.

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, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

.

 

[whitehall]

Bad decisions by the Supreme Court are tolerated because the stupid pop-culture media isn't paying attention.

 

[Quantum Windbag]

The courts interpreted the law well before the US constitution ever existed. The constitution is itself a law. Bam.

On a related note, how do you propose anything in the constitution is determined to have meaning, or what that meaning is? Let's say that a state passes a law that prohibits the practice of Christianity. People are charged with crimes for practicing Christianity. The defendants argue that the law violates their constitutional rights. How can the court entertain such a defense if they don't have the power of judicial review?

Bam again, you simpleton.

The Court has every right to point out conflict with a State's law and the Constitution. The Court has zero authority to repeal or nullify the law. There is the difference. The Constitution is very clear in enumerated powers that only Congress may pass, repeal, or amend law. The Courts has no such authority. They never have.

That is wrong. The Supremacy Clause of the Constitution gives the federal government the power to strike down unconstitutional laws.

If the Court can't strike down an unconstitutional state or federal law, then the Constitution is unenforceable.

No it does not.

Remember when I blasted the entire thread because people don't know how the government works? This is an example of what I am talking about.

The Supremacy Clause simply states that, in the event there is a conflict between state and federal law federal law will prevail. The intent was to prevent judges from invalidating a federal law they did not like by pointing at a state law and saying it had precedent for whatever reason. The proof of that is that it is perfectly legal for states to pass laws that go above and beyond what federal laws says. If it wasn't, there would be no state laws at all, every law would come out of DC, and it would be legal to own an assault weapon in New York.

 

[M14 Shooter]

I already posted that the Supreme Court had struck down, and upheld btw, laws after ratification but prior to Marbury.

Not true. Specific examples of Supreme Court rulings where this occurred prior to Marbury or I can major bullshit.

You should, because no such cases exist.