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Marbury v Madison.

clownboy said:
Marshall vs. Jefferson Then and Now - The Imaginative Conservative

Turns out he was absolutely right about this.
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When a conservative disagrees with a Supreme Court decision, his first move is to claim that the Court is abusing its power. When a conservative agrees with a Supreme Court decision, he's got no problem with the Court's power. Yet in each instance, the Court has added new meaning to the constitution. I suspect the conservatives I speak of have simply deluded themselves that dressing up the language of mere disagreement with that of righteous indignation about tyranny think that doing so makes their position look stronger, in the same way that a high school student might make his drivel more complex by abusing the thesaurus.
 
Mr Person said:
When a conservative disagrees with a Supreme Court decision, his first move is to claim that the Court is abusing its power. When a conservative agrees with a Supreme Court decision, he's got no problem with the Court's power. Yet in each instance, the Court has added new meaning to the constitution. I suspect the conservatives I speak of have simply deluded themselves that dressing up the language of mere disagreement with that of righteous indignation about tyranny think that doing so makes their position look stronger, in the same way that a high school student might make his drivel more complex by abusing the thesaurus.
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In conserva-speak, "that's unconstitutional" means nothing more than "I don't like it"
 
Kal'Stang said:
This thread is about what would happen if SCOTUS didn't have that power. Please speak to that.
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There would be an imbalance of powers, as the legislature would be able to pass laws without any entity able to verify that the laws would be Constitutional. The Executive is not empowered to blatantly refuse to ignore the law, therefore it can't act as a check on an unconstitutional law. (Though it could drag its feet, or seize that power anyway.)

Similarly, it would fall upon the legislature to ensure that the Executive is following its edicts and/or acting in a manner consistent with the Constitution.

We should note this probably won't devolve power to the states. E.g. the SCOTUS wasn't as powerful in Jackson's time as it is today, yet the southern states still failed to establish the power to nullify federal laws.

The need to verify the constitutionality of legislation and executive actions won't go away. Thus, the question would rely greatly on what we do to replace judicial review.

It's also critical to note that many people who screech about the evils of judicial review are usually outraged that their side lost. As a result, whatever replaces judicial review would still be subject to the same charges of politicization and failure to follow the Constitution, no matter what the legal reasoning.

I.e. in many respects, nothing would change if judicial review either did not exist, or was eliminated today.
 
Mr Person said:
When a conservative disagrees with a Supreme Court decision, his first move is to claim that the Court is abusing its power. When a conservative agrees with a Supreme Court decision, he's got no problem with the Court's power. Yet in each instance, the Court has added new meaning to the constitution. I suspect the conservatives I speak of have simply deluded themselves that dressing up the language of mere disagreement with that of righteous indignation about tyranny think that doing so makes their position look stronger, in the same way that a high school student might make his drivel more complex by abusing the thesaurus.
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Yeah, because Jefferson was such a conservative. :lamo

For my part I object to the SCOTUS taking power and engaging in social engineering at every turn.
 
clownboy said:
For my part I object to the SCOTUS taking power and engaging in social engineering at every turn.
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Good news! They don't do anything of the sort. They just occasionally make decisions that you don't like.
 
clownboy said:
Yeah, because Jefferson was such a conservative. :lamo
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You seem confused. Your cite is conservative. So are you. And I was speaking about conservatives.


clownboy said:
:lamo
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Indeed.



clownboy said:
For my part I object to the SCOTUS taking power and engaging in social engineering at every turn.
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Well, no:

Mr Person said:
When a conservative disagrees with a Supreme Court decision, his first move is to claim that the Court is abusing its power. When a conservative agrees with a Supreme Court decision, he's got no problem with the Court's power. Yet in each instance, the Court has added new meaning to the constitution. I suspect the conservatives I speak of have simply deluded themselves that dressing up the language of mere disagreement with that of righteous indignation about tyranny think that doing so makes their position look stronger, in the same way that a high school student might make his drivel more complex by abusing the thesaurus.
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It really is that simple, and I don't know why you guys think you're fooling anyone when you do it. Complaining about the result would look like, well, complaining. So you try to dress your whine up as some kind of righteous fury at alleged tyranny, or power-grabbing, or whatever strong-sounding word you land on as you type....
 
Kal'Stang said:
This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
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If the U.S. Supreme court did not have final judicial review on all laws passed by the congress, then it would be like the British system where their highest court is overruled by the House of Lords.
 
clownboy said:
Except that's entirely false. Every single founder alive at the time of the decision opposed it. My god - it's in the freakin case title. The Madison of Madison v Marbury was the Father of the US Constitution and HE opposed the ruling. Thomas Jefferson, the president at the time, also a signer of the constitution - he said they did not have this grant of power. NO ONE but the court thought they did have the power at the time.

It's telling that their ruling was never honored. Marbury never got his seat.
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When the constitution was being debated at the convention in 1787, the anti-federalists pointed out this problem. It was well know to the Founding Fathers that the U.S. Supreme court would have final judicial review. Yet they put their signatures on the document regardless.
 
Captain Adverse said:
Marbury v. Madison did not create the idea of judicial review.

That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.

However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.

All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.

Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.
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I don't have the source at hand, but the question of whether or not Article III was intended to grant the Supreme Court it established the right of judicial review of laws for constitutionality; all but two delegates agreed that it should.






(Oh...looks like I'd been in this thread a while back... probably even said that already)
 
Here is an excerpt from Brutus XI which is part of "the anti-federalist papers":

The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort.

All this was made clear when they were attempting to ratify the constitution.
 
I think the idea of judicial review existed long before Marbury v. Madison, and was much broader than the
court judging laws.
In 1794 John Jay wrote,
It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.....you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.
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Saying not just the courts, but the juries have the power to judge the law.
 
For those of you who think that the Federal Judiciary has too much power, here's an excerpt from Federalist Paper no. 78 written by Alexander Hamilton:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.
 
Kal'Stang said:
This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
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the problem is TODAY the the USSC is the only bulwark against unconstitutional acts of laws, however in original constitutional law of the founders, the senate was the first bulwark and the USSC the second bulwark

because the state legislatures no longer control the senate, and when the federal government creates laws outside of their delegated powers of the constitution, the states can no longer stop it and have to turn the courts for help.

the court is part of the federal government they usual yield to the FEDS do not protect state powers.

the states have been stripped of their power to keep the federal government in check [inside the constitution], by the 17th amendment.

repeal the 17th and we will not have to rely on the USSC so much
 
Master PO said:
the problem is TODAY the the USSC is the only bulwark against unconstitutional acts of laws, however in original constitutional law of the founders, the senate was the first bulwark and the USSC the second bulwark

because the state legislatures no longer control the senate, and when the federal government creates laws outside of their delegated powers of the constitution, the states can no longer stop it and have to turn the courts for help.

the court is part of the federal government they usual yield to the FEDS do not protect state powers.

the states have been stripped of their power to keep the federal government in check [inside the constitution], by the 17th amendment.

repeal the 17th and we will not have to rely on the USSC so much
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The 17th amendment should be repealed IMO. It's a complete absurdity to have two branches of the congress elected by popular vote with one of them not even having proportional representation. The Senate was originally meant to be the American version of the House of Lords as used in the British system. If you were to insist that congressional representatives are to be elected by popular vote, then why not just eliminate the Senate all together?
 
Crovax said:
So you theory is that it needs to exist so instead of creating an amendment we should just allow the court's the power to expand thier own power?
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I have no problem whatsoever with writing in, if necessary, the legal fiction of judicial review. Principle has to be wedded with utility if a nation is to survive.
 
Congress makes the law, the Supreme Court interprets the law, but it is the juror who has the final say in enforcing the law, and that is the ultimate power.
The power of jury nullification is the only power which really matters but not one in a thousand citizens understand how it works or why it is so important.

The Citizens still hold the ultimate power if they were only intelligent enough to use it.
 
jdog said:
Congress makes the law, the Supreme Court interprets the law, but it is the juror who has the final say in enforcing the law, and that is the ultimate power.
The power of jury nullification is the only power which really matters but not one in a thousand citizens understand how it works or why it is so important.

The Citizens still hold the ultimate power if they were only intelligent enough to use it.
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The court is under no obligation to inform juries about nullification.
 
Unitedwestand13 said:
The court is under no obligation to inform juries about nullification.
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The court is under the obligation to serve justice. Justice cannot be done under deceit and deception. The courts are more concerned with control over the justice system than whether justice is actually served.
 
jdog said:
The court is under the obligation to serve justice. Justice cannot be done under deceit and deception. The courts are more concerned with control over the justice system than whether justice is actually served.
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Read Sparf v. United States
 
Unitedwestand13 said:
Read Sparf v. United States
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That only goes to show that the Supreme Court is corrupt and cannot be trusted which is why jury nullification is so important and the duty of every American Citizen.
 
Kal'Stang said:
Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?
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what? you are assuming the SCOTUS has some unique ability to make good decisions. Without them things would we be decided by other branches and by states which would be far more democratic and so far better.
 
Kal'Stang said:
Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.



Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?
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Some of the examples you offered raise constitutional issues, and some do not. Whether a baker may refuse to serve a homosexual, for example, depends on that state's public accommodations law and has nothing to do with the Constitution.
 
James972 said:
what? you are assuming the SCOTUS has some unique ability to make good decisions. Without them things would we be decided by other branches and by states which would be far more democratic and so far better.
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Nope, not under that impression at all. It's obvious that SCOTUS doesn't always make good decisions. And no, democratic is not always better. In fact its often far worse. Mob mentality often brings forth pitchforks and torches.
 
Kal'Stang said:
Nope, not under that impression at all. It's obvious that SCOTUS doesn't always make good decisions. And no, democratic is not always better. In fact its often far worse. Mob mentality often brings forth pitchforks and torches.
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not talking about mobs but about other branches of govt and state governments. Do you understand?
 
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