Where does the constitution give federal judges the power to repeal laws?

[Faun]

The court's ruling nullify laws making abortion a crime. It did not write any new laws.

In the first place repealing laws is a legislative function, not a judicial one. In the second place, they did indeed write a law by arbitrarily specifying first trimester abortions be legal.

I said nullify. Can't you read?

 

[ShootSpeeders]

[

Nope. The only one saying that judges can 'write law' is you. Citing yourself.

Which is legally and linguistically meaningless.

So why do you say judicial opinions are "case LAW".?? THINK, america-hater.

 

[ShootSpeeders]

In the first place repealing laws is a legislative function, not a judicial one. In the second place, they did indeed write a law by arbitrarily specifying first trimester abortions be legal.

I said nullify. Can't you read?

HAHAHA. Did you really say that? So now nullifying and repealing are two different things because they have different names?? HAHA

 

[Skylar]

[

Nope. The only one saying that judges can 'write law' is you. Citing yourself.

Which is legally and linguistically meaningless.

So why do you say judicial opinions are "case LAW".?? THINK, america-hater.

Case law is merely the outcome of cases about the law.

When two laws conflict its up to the court to determine which law is enacted in exclusion of the other. The constitution is fundamental law. If congress passes a statute that conflicts with the fundamental law of the constitution, the court has the authority and the responsibility to enact the constitution in exclusion of the congressional statute.

You say they can't. Federalist Paper 78 says they can and should.

It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other.

Federalist Paper 78

Why would I ignore the founders, the federalist papers, the entire concept of checks and balances and 220 years of history.....and instead believe you?

Remember.....you're clueless. THINK.

 

[Centinel]

Again, the Constitution exists solely in the context of its case law, as determined by the Supreme Court – the case law that acknowledges a right to self-defense and a right to privacy.

It was the original understanding and intent of the Framing Generation that the Supreme Court would determine what the Constitution means, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution – indeed, the Constitution in of itself is an acknowledgement and codification of the Court’s interpretive authority.

Consequently, there exists a right to self-defense and an individual right to possess a firearm – where the words ‘self-defense’ and ‘individual’ don’t need to be in the Second Amendment to in fact be true; likewise, the word ‘privacy’ doesn’t need to be in the Constitution for there to in fact exist a right to privacy, prohibiting the states from compelling a woman to give birth against her will.

The constitution exists solely in the context of its case law? Really?

So when the constitution was sent to the states for ratification, how did the states know what it was they were ratifying? There was no case law, so how were the state conventions able to understand what the constitution actually said?

 

[Skylar]

Again, the Constitution exists solely in the context of its case law, as determined by the Supreme Court – the case law that acknowledges a right to self-defense and a right to privacy.

It was the original understanding and intent of the Framing Generation that the Supreme Court would determine what the Constitution means, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution – indeed, the Constitution in of itself is an acknowledgement and codification of the Court’s interpretive authority.

Consequently, there exists a right to self-defense and an individual right to possess a firearm – where the words ‘self-defense’ and ‘individual’ don’t need to be in the Second Amendment to in fact be true; likewise, the word ‘privacy’ doesn’t need to be in the Constitution for there to in fact exist a right to privacy, prohibiting the states from compelling a woman to give birth against her will.

The constitution exists solely in the context of its case law? Really?

So when the constitution was sent to the states for ratification, how did the states know what it was they were ratifying? There was no case law, so how were the state conventions able to understand what the constitution actually said?

The federalist papers provided the context of the constitution at the time of ratification. With Federalist 78 affirming that when the two laws conflict, it is the judiciary that decides which law is enacted in exclusion of the other. When a congressional or state statute conflicts with the constitution it is the duty of the court to enact the fundamental law of the constitution in exclusion of the state or federal law.

 

[Centinel]

Again, the Constitution exists solely in the context of its case law, as determined by the Supreme Court – the case law that acknowledges a right to self-defense and a right to privacy.

It was the original understanding and intent of the Framing Generation that the Supreme Court would determine what the Constitution means, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution – indeed, the Constitution in of itself is an acknowledgement and codification of the Court’s interpretive authority.

Consequently, there exists a right to self-defense and an individual right to possess a firearm – where the words ‘self-defense’ and ‘individual’ don’t need to be in the Second Amendment to in fact be true; likewise, the word ‘privacy’ doesn’t need to be in the Constitution for there to in fact exist a right to privacy, prohibiting the states from compelling a woman to give birth against her will.

The constitution exists solely in the context of its case law? Really?

So when the constitution was sent to the states for ratification, how did the states know what it was they were ratifying? There was no case law, so how were the state conventions able to understand what the constitution actually said?

The federalist papers provided the context of the constitution at the time of ratification. With Federalist 78 affirming that when the two laws conflict, it is the judiciary that decides which law is enacted in exclusion of the other. When a congressional or state statute conflicts with the constitution it is the duty of the court to enact the fundamental law of the constitution in exclusion of the state or federal law.

Exactly. When the constitution was sent to the states for ratification, there was no case law. So the statement that the constitution exists solely in the context of its case law is clearly bunk.

 

[Skylar]

Again, the Constitution exists solely in the context of its case law, as determined by the Supreme Court – the case law that acknowledges a right to self-defense and a right to privacy.

It was the original understanding and intent of the Framing Generation that the Supreme Court would determine what the Constitution means, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution – indeed, the Constitution in of itself is an acknowledgement and codification of the Court’s interpretive authority.

Consequently, there exists a right to self-defense and an individual right to possess a firearm – where the words ‘self-defense’ and ‘individual’ don’t need to be in the Second Amendment to in fact be true; likewise, the word ‘privacy’ doesn’t need to be in the Constitution for there to in fact exist a right to privacy, prohibiting the states from compelling a woman to give birth against her will.

The constitution exists solely in the context of its case law? Really?

So when the constitution was sent to the states for ratification, how did the states know what it was they were ratifying? There was no case law, so how were the state conventions able to understand what the constitution actually said?

The federalist papers provided the context of the constitution at the time of ratification. With Federalist 78 affirming that when the two laws conflict, it is the judiciary that decides which law is enacted in exclusion of the other. When a congressional or state statute conflicts with the constitution it is the duty of the court to enact the fundamental law of the constitution in exclusion of the state or federal law.

Exactly. When the constitution was sent to the states for ratification, there was no case law. So the statement that the constitution exists solely in the context of its case law is clearly bunk.

There was for many of the terms used: English Common law. Which the founders used selectively. For example, where did the term 'natural born citizen' come from? Its never defined in the constitution or the constitutional congress. But 'natural born' has an express definition in English Common law.

Sometimes the founders came to the same conclusions as English Common Law....but used a completely different basis of reasoning to get there. As they did in Federalist 78, placing the judiciary as an intermediarry between the government and the people. This wasn't an English Common Law role, but one reasoned by the Founders themselves. Though the effect was identical with judicial review.

 

[ShootSpeeders]

. If congress passes a statute that conflicts with the fundamental law of the constitution, the court has the authority and the responsibility to enact the constitution in exclusion of the congressional statute.
.

But there is no way to objectively determine if a law conflicts with the constitution. It's all just some judge's opinion. You're too dumb to understand that.

 

[Skylar]

. If congress passes a statute that conflicts with the fundamental law of the constitution, the court has the authority and the responsibility to enact the constitution in exclusion of the congressional statute.
.

But there is no way to objectively determine if a law conflicts with the constitution. It's all just some judge's opinion. You're too dumb to understand that.

Interpretation of the law is the role of the judiciary according to the founders, to keep the legislature within its assigned powers.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Federalist Paper 78

You insist we should ignore the founders and their intended role for the judiciary....and replace it with your subjective opinion.

You're simply too dumb to understand that you're nobody

 

[Centinel]

There was for many of the terms used: English Common law. Which the founders used selectively. For example, where did the term 'natural born citizen' come from? Its never defined in the constitution or the constitutional congress. But 'natural born' has an express definition in English Common law.

Sometimes the founders came to the same conclusions as English Common Law....but used a completely different basis of reasoning to get there. As they did in Federalist 78, placing the judiciary as an intermediarry between the government and the people. This wasn't an English Common Law role, but one reasoned by the Founders themselves. Though the effect was identical with judicial review.

Exactly. The founders and ratifiers were able to read and understand the meaning of the constitution prior to the establishment of the supreme court because it existed prior to the existense of the supreme court.

Saying that the constitution exists solely in the context of its case law is ridiculous, as it existed prior to the very first case.

 

[Skylar]

There was for many of the terms used: English Common law. Which the founders used selectively. For example, where did the term 'natural born citizen' come from? Its never defined in the constitution or the constitutional congress. But 'natural born' has an express definition in English Common law.

Sometimes the founders came to the same conclusions as English Common Law....but used a completely different basis of reasoning to get there. As they did in Federalist 78, placing the judiciary as an intermediarry between the government and the people. This wasn't an English Common Law role, but one reasoned by the Founders themselves. Though the effect was identical with judicial review.

Exactly. The founders and ratifiers were able to read and understand the meaning of the constitution prior to the establishment of the supreme court because it existed prior to the existense of the supreme court.

Saying that the constitution exists solely in the context of its case law is ridiculous, as it existed prior to the very first case.

The constitution had a context: English Common law and the federalist papers. As the judiciary ruled, the legal principle of stare decisis created binding precedent within our legal system.

To claim that the constitution *has always* existed soley in the context of the caselaw would be inaccurate. To claim that the constitution currently exists solely in the context of caselaw is thoroughly debatable.

 

[ShootSpeeders]

Interpretation of the law is the role of the judiciary according to the founders, to keep the legislature within its assigned powers.

If that's what the founders intended, why didn't they put it in the constitution? You seem to think the federalist papers are part of the constitution!!!

Fact is the constitution never says who has power to interpret laws or the constitution. Which, by the tenth amendment, means the states or the people have the power.

BTW - if it's the job of the courts to act as check on the legislature, then who acts as check on the courts??

 

[Skylar]

Interpretation of the law is the role of the judiciary according to the founders, to keep the legislature within its assigned powers.

If that's what the founders intended, why didn't they put it in the constitution?

They did. Its called the judicial power.

You seem to think the federalist papers are part of the constitution!!!

I seem to think that the federalist papers give us a far better insight into what the founders intended than your subjective opinion.

And of course I'm right.

BTW - if it's the job of the courts to act as check on the legislature, then who acts as check on the courts??

Sigh...read the fucking constitution.

The Executive and Senate check the judiciary by defining who will be part of it.

The Legislatures check the judiciary by writing the laws the judiciary interprets.

The Legislatures check the judiciary by being able to impeach any justice who violates the law.

And the Legislatures check the judiciary by defining what it can and can't rule on.

THINK.

 

[heirtothewind]

Those who complain the most about alleged constitutional violations seem to know the least about the Constitution. Whenever I hear ''Where in the Constitution does it say..'', I know it is coming from someone who could not pass a high school civics test.

 

[Skylar]

Those who complain the most about alleged constitutional violations seem to know the least about the Constitution. Whenever I hear ''Where in the Constitution does it say..'', I know it is coming from someone who could not pass a high school civics test.

My favorite is when they ask 'where does the constitution say that this right exists?'. As if the constitution was an exhaustive list of rights.

 

[IsaacNewton]

Congress has powers to keep the judicial in check per the Constitution. If Congress can't agree on an action then the court's rulings go unchallenged.

The checks and balances put into the Constitution are just as they were and are still operating properly just as the founders envisioned. That any current group doesn't like the outcome of this process doesn't mean anything 'unconstitutional' is taking place, it means the three branches of government may have differences but these differences are not so severe that action by one against the other is taken.

Stop the arm flailing, the Constitution is just fine thanks. You people who think it not being followed you have a direct way to make changes. Vote new people into office.

 

[JakeStarkey]

Those who complain the most about alleged constitutional violations seem to know the least about the Constitution. Whenever I hear ''Where in the Constitution does it say..'', I know it is coming from someone who could not pass a high school civics test.

My favorite is when they ask 'where does the constitution say that this right exists?'. As if the constitution was an exhaustive list of rights.

Such questions show a complete lack of understanding about matters constitutional.

 

[heirtothewind]

JOHN MARSHALL’S CONSTITUTIONAL INTERPPRETIONS


To emphasize the importance of "We the People" in the Preamble of the Constitution, one should examine the Preamble of the Articles of Confederation. In the Articles of Confederation, the Preamble bears no such phrase, and instead moves quickly into the content of the Articles with barely any such opening ideas. "We the People" is conspicuously absent from the Preamble of the Articles. The Constitution, on the other hand, by opening up with "We the People" immediately affirms that the interaction between the Constitution and the citizens of the United States is direct and immediate, meaning that the Constitution, and the government it creates, supersedes any State government.


To me, John Marshall exerted more influence in shaping the United States than most Presidents. His court opinions [Marbury v Madison; McCulloch v Maryland; Gibbons v Ogden] helped lay the basis for United States constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches. Marshall dominated the Court for over three decades and played a significant role in the development of the American legal system. Most notably, he reinforced the principle that federal courts are obligated to exercise judicial review. Marshall's court made important decisions on federalism, affecting the balance of power between the federal government and the states. He repeatedly confirmed the supremacy of federal law over state law, and supported an expansive reading of the enumerated powers. His decisions emphasized the importance of "We the People" in the Preamble of the Constitution, affirming that the interaction between the Constitution and the citizens of the United States is direct and immediate, meaning that the Constitution, and the government it creates, supersedes any State government.


John Marshall was a judicial activist, a non-originalist interpreter of the Constitution. Judicial activism is a way for the law to keep pace with ever rapidly changing social values [eg, same-sex marriage] and technological advancements. It has been around since the common law system of Henry II [1154-1189], and is reinforced by the Ninth Amendment to the Constitution. The fundamental constitutional rights to interstate travel, marriage, and privacy [eg, birth control], as well as desegregation, have been the result of courageous judicial activism. [Brown v Bd of Education]. I do not think that federal judges act capriciously when invalidating a state law, even when the law is voted in by the people. If the majority approves a law that Jews cannot own businesses or that Afro-Americans must live in segregated communities, then the federal judiciary has a duty to protect the rights of the minority from such democratic tyranny. [Federalist Paper No. 10]. I am sick of hearing whining that a court overturned ''the will of the people.'' The word ''democracy'' is a glittering generality -- like ''protect our children '' --- used to justify the most atrocious acts or to elect incompetent people to office. Remember: everything Hitler did was legal and in accordance with laws passed by elected representatives of the people.

We have, as a nation, certain fundamental rights that cannot be determined by voting who, and who is not, entitled to them. A ‘’fundamental right,’’ in constitutional law, is one that is afforded a high degree of protection by the courts because the right is expressed or implied in the Constitution. Examples are the right to free speech, the right to interstate travel, and the right to privacy. The Due Process Clause of the Fifth and Fourteenth Amendments also protects those fundamental rights and liberties which are "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed.’’ Washington v. Glucksberg, 523 US 702, 721 (1997); Moore v. East Cleveland, 431 US 494, 503 (1977).

The battle cry of ''states' rights'' was silenced with the end of the Civil War and the adoption of the Fourteenth Amendment. Since the New Deal, the Tenth Amendment has been virtually dead as almost all federal legislation is upheld under the Commerce Clause or General Welfare Clause. State laws are invalidated by the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. [Lawrence v. Texas - sodomy laws; Loving v Virginia- miscegenation laws]. The Tenth Amendment is merely a relic of the antebellum South and the last redoubt of reactionaries who long for the days of segregation, Jim Crow laws, communist witch hunts, and women in the kitchen rather than the workplace. With the adoption of uniform codes of law by the states [eg, federal rules of civil procedure and evidence, uniform commercial code, etc.], even traditional areas of state legislation such as public health, education, welfare, and safety are yielding to federal legislation and federal funding. The recent trend of invalidating same-sex marriage bans is evidence that states' rights, enshrined in the Tenth Amendment, is no longer a viable legal justification for anything. The Civil War made a grammatical change from ''The United States are a nation.'' to '''The United States is a nation.'' Our laws should reflect that change.

I am indeed delighted that we have a strong centralized national government today whose laws pre-empt reactionary state laws under the Supremacy Clause, giving us a more unified legal system and code of laws. Our federalism is a product of a fear of monarchy which no longer exists. States' rights is now very limited to legislation on public health, education, welfare, safety, criminal law, property law, family law, expenditure of tax money, or efficiency of public administration -- but always subject to constitutional guarantees, as it should be.

 

[EdwardBaiamonte]

the Constitution, and the government it creates, supersedes any State government.
.

how is that possible when Revolutionary War was against central govt and when author of Constutution said:

James Madison: "The government of the United States is a definite government, confined to specific objectives. It is not like state governments, whose powers are more general. Charity is no part of the legislative duty of the government."
67)James Madison in Federalist paper NO. 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce."

sorry to rock your world!!