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Thread: Judge doesn't buy state secrets privilege, OKs wiretap suit

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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by RightinNYC View Post
    Congress can remove the ability of the courts to hear those cases.
    And the courts could find Congress' action unconstitutional.
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    Indeed, which is why federal judges are appointed by the executive branch and confirmed by the legislative. The judicial branch itself is a check on the legislative branch. What better system than the courts would you suggest to ensure that the legislative branch does not create laws that violate the supreme law of the land?
    Notice that I argued judicial review was an implicit authority granted to the Courts?

    Okay, notice, too, that my issue is the evolution of that implied authority to judicial supremacy.

    Any thoughts?

    Not at all. The judicial branch cannot legislate, it can only determine if existing legislation is illegal or interpret the existing language of existing legislation. It must work entirely within the framework that is set by the legislative branch
    The problem, of course, is that judicial supremacy is acting to impose on the other branches an obligation to heed its decisions on the meaning of the Constitution. Hence, the extreme deference being paid to the judiciary to settle political questions/issues and arguments that political issues can only be resolved by judicial decisions.

    This is what's so funny. There are so many people whining that the president and Congress cannot change the meaning of the Consitution. That's true. Somehow it never seems to occur to them that neither can the Supreme Court judicially change the meaning of the Constitution. Yet so often the Court has presumed to do just that, and gotten away with it. And your faith in judicial supremacy remains unbroken.

    Nothing. However, when such legislation is challenged in court the judicial branch can strike said legislation down as unconstitutional. Ya know - check the power of Congress
    The Framers did not grant to the judicialry a broad power to veto, i.e., strike down legislative acts.

    Judicial activism has led to court rulings effectively preempting congressional legislation. Roe, for example, has effectively prevented any serious abortion-related legislation now for thirty years. This ain't merely a check, it's a usurptation of legislative power.

    I can't believe that you're so badly misunderstanding something as fundamental as checks and balances. Judicial review is an essential part of that system
    Funny, I argue that judicial review is an implied power granted to the judiciary. I then argue that judicial supremacy, how the court behaves now, upsets the concepts of checks and balances, separation of powers, and co-equality.

    But then you claim I am woefully misunderstanding these concepts?

    Dude, you can throw out such accusations but they are not substitutes for reasoning discussion.

  3. #13
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    Re: Judge doesn't buy state secrets privilege, OKs wiretap suit

    Quote Originally Posted by Kernel Sanders View Post
    That synopsis doesn't actually state any of the book's arguments, which makes it impossible to debate. The most it says is this
    I don't necessarily agree with it so I wasn't bringing it up to debate, I was just pointing out that there are legal scholars who argue that the entire idea of judicial review was based on faulty assumptions and should have been limited or even prohibited.

    That paragraph seems to indicate more of a problem with the courts interpreting the laws than with the courts declaring laws unconstitutional. I don't see how the constitution has any meaning at all unless the courts can strike down laws that violate it.
    Conversely, it could be argued that the Constitution has no meaning when the courts can reinterpret it however they like.

    edit: If you want more discussion of that book, they did a series on it over at Volokh.

    The Volokh Conspiracy - Hamburger?s Law & Judicial Duty. Part 1: ?Judicial Review.?
    Last edited by RightinNYC; 01-06-09 at 07:01 PM.
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