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

[jillian]

The very first words of the constitution after the preamble are

All legislative powers herein granted shall be vested in a congress of the united states

Writing laws and repealing laws are legislative powers and yet federal judges are constantly declaring laws unconstitutional and repealing them and sometimes even writing a new law in its place!

judges don't "repeal" laws. they strike down unconstitutional laws.

you should probably read marbury v madison.

 

[jillian]

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.

i'm not sure who wrote that.... but there was no method of constitutional construction called "originalism" until rhenquist and scalia made it up.

again, i'll suggest reading marbury v madison because that is the law and the basis of our view of judicial review.

 

[EdwardBaiamonte]

The very first words of the constitution after the preamble are

All legislative powers herein granted shall be vested in a congress of the united states

Writing laws and repealing laws are legislative powers and yet federal judges are constantly declaring laws unconstitutional and repealing them and sometimes even writing a new law in its place!

judges don't "repeal" laws. they strike down unconstitutional laws.

you should probably read marbury v madison.

why would he read it when he just said he disagrees with concept of libcommie judges in America, would disagree with Marbury, and agree with Constitution.

 

[EdwardBaiamonte]

i'm not sure who wrote that.... but there was no method of constitutional construction called "originalism" until rhenquist and scalia made it up.
.

so if judges are not supposed to care about original meaning of Constitution what are they supposed to care about?????????????

 

[EdwardBaiamonte]

again, i'll suggest reading marbury v madison because that is the law and the basis of our view of judicial review.

You mean its the libturd view.

 

[JakeStarkey]

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!!

EB throws a curve ball that bounces in the dirt in front of home plate.

Madison's understanding is not codified in the Constitution.

The states submitted to the Union by ratifying a much stronger charter of government than that of the Articles of Confederation, the Congress of which ratified the acceptance of the Constitution.

Marbury is the accepted view of SCOTUS and Congress, no exception.

 

[heirtothewind]

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!!

Art VI provides that federal law pre-empts sate law.

And my world is not ''rocked'' by someone obsessed with proving himself to be right on an issue that isn't worth a fart.

 

[JakeStarkey]

EdwardBaiamonte somehow believes the Mises school is worthy of something. The educated, knowledgeable individual knows the American adaption of Mises is shit. The Constitution in Article III gives SCOTUS orginal jurisdiction of all matters constitutional.

End of subject.

 

[Conservative65]

EdwardBaiamonte somehow believes the Mises school is worthy of something. The educated, knowledgeable individual knows the American adaption of Mises is shit. The Constitution in Article III gives SCOTUS orginal jurisdiction of all matters constitutional.

End of subject.

Wrong.

End of discussion.

 

[JakeStarkey]

EdwardBaiamonte somehow believes the Mises school is worthy of something. The educated, knowledgeable individual knows the American adaption of Mises is shit. The Constitution in Article III gives SCOTUS original jurisdiction of all matters constitutional. End of subject.

Wrong. End of discussion.

^^^

 

[JakeStarkey]

You can only flame as a troll with nothing on topic. Must be tough to be fools like you on the far right.

Article III is quite clear SCOTUS and the federal judiciary have original adjudication on all matters constitutional.

What you thinks means absolutely nothing, Conservative65.

 

[RetiredGySgt]

Article III is CLEAR as a BELL. The Supreme Court has jurisdiction in ALL cases involving the US Federal Government and any action between several States. That means the Supreme Court rules what is and is not legal in those cases.

 

[JakeStarkey]

Yes, the federal judiciary has complete sovereign jurisdiction on all matters of constitutionality.

 

[Packyderm]

so if judges are not supposed to care about original meaning of Constitution what are they supposed to care about?????????????

Whatever latest liberal crusade the Dixie Chicks embrace?

 

[IlarMeilyr]

For those who still have major difficulty following along, here's a very brief (and necessarily limited) crib sheet:

• The United States Constitution serves primarily to LIMIT the power and authority of the Federal Government,
• In large part, it does not give us any rights, but it helps to secure our rights (by, among other things, limiting the power and authority of the Federal Government).
• It helps to limit the power and authority of the Federal Government by enumerating those powers and limiting the Federal Government's powers and authority to those that are so enumerated.
• Since the litany of enumerated powers (and authority) could not be completely exhaustive, it is understood to include certain implicit powers and authorities needed to put into effect those enumerated powers and authorities.
• It also seeks to limit the power and authority of the Federal Government by a variety of techniques such as FEDERALISM and via dividing the powers of the government among the different BRANCHES and setting up CHECKS AND BALANCES, accordingly.

Let's note one other thing. Observing that the Constitution was designed with a wary eye on the power and authority of government, and further observing that, in keeping with those kinds of concerns, the Constitution is intent on limiting the Federal Government is NOT the same thing as suggesting that the Constitution sought for the Federal Government to be entirely weak and almost powerless. It was not a plan to make the government ineffective. The Founders and the Framers were not setting up a neutered Republic.

As Madison himself noted ("If men were angels ..."): "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." Federalist No. 51.

 

[eflatminor]

[QUOTE="ShootSpeeders, post: 8336360, member: 37134" Who acts as a check on our unelected Supreme Court?[/QUOTE]

The people. First with the power of nullification and if that doesn't work, the last check is the 2nd amendment. Let's hope it doesn't come to that.

 

[ShootSpeeders]

Article III is CLEAR as a BELL. The Supreme Court has jurisdiction in ALL cases involving the US Federal Government and any action between several States. That means the Supreme Court rules what is and is not legal in those cases.

So you say the court has authority to both write and repeal laws? Then why does the constitution say "all legislative powers herein granted shall be vested in a congress of the united states."

 

[ShootSpeeders]

Yes, the federal judiciary has complete sovereign jurisdiction on all matters of constitutionality.

Where does the constitution say that?. If anything it says ( via the tenth amendment) that the states decide what the constitution means. THINK

 

[ShootSpeeders]

Who acts as a check on our unelected Supreme Court?

The people. First with the power of nullification and if that doesn't work, the last check is the 2nd amendment. Let's hope it doesn't come to that.

HAHAHA. That's it.?? We have the power to shoot them??? Be nice if we could vote judges out like we do congressmen.

There is in fact no oversight of the Supreme Court. Those 9 UNELECTED judges have given themselves final say on every issue.!!!

 

[Faun]

Article III is CLEAR as a BELL. The Supreme Court has jurisdiction in ALL cases involving the US Federal Government and any action between several States. That means the Supreme Court rules what is and is not legal in those cases.

So you say the court has authority to both write and repeal laws? Then why does the constitution say "all legislative powers herein granted shall be vested in a congress of the united states."

They have the power to nullify laws, not write them.