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Abortion and Immigration Rules

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code1211

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Could be that I'm not catching the finer points of both arguments in this.

I seem to recall that among the various rationalizations in support of legalized abortion is the fact that the unborn have no rights because they have not yet been born and, of course, have not been naturalized.

Since they are not American Citizens, they are afforded no protections or immunities guaranteed under the Constitution or judicial precedent.

Recently, Liberal judges are awarding rights enjoyed by American citizens to folks who were not born in the USA OR naturalized. They seem to be saying that all people, regardless of legal definition, have the normal and usual rights and immunities accorded to citizens of the US.

The rulings establish rights that don't exist and deny Presidential authority that is Constitutionally established and defined.

Will this act of legal gymnastics come around to affect other areas of American law?

American citizenship legal definition of American citizenship

https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
 
That is a good point and while I of course frown on judicial activism, if that turnabout became fair play, I would not be surprised and they would have no leg to stand on contesting it.
 
code1211 said:
Could be that I'm not catching the finer points of both arguments in this.

I seem to recall that among the various rationalizations in support of legalized abortion is the fact that the unborn have no rights because they have not yet been born and, of course, have not been naturalized.
Click to expand...

Sorry, you are mistaken.

The ruling in Roe v. Wade , 410 U.S. 113 (1973), was based on a right to privacy in control of ones own body. It also held that this right only extended until viability of the fetus, at which point it is protected and cannot be aborted (with the exception it may occur to preserve the life of the mother. See Doe v. Bolton, 410 U.S. 179 (1973)).

This has NOTHING to do with being a "naturalized citizen." At best one might argue it as a birthright citizenship issue (under the 14th Amendment) since the child has not been born, only conceived, in the USA. But that is weak sauce in terms of your argument's premise. IMO you cannot conflate this with the Immigration issue.

code1211 said:
Recently, Liberal judges are awarding rights enjoyed by American citizens to folks who were not born in the USA OR naturalized. They seem to be saying that all people, regardless of legal definition, have the normal and usual rights and immunities accorded to citizens of the US.

The rulings establish rights that don't exist and deny Presidential authority that is Constitutionally established and defined.

Will this act of legal gymnastics come around to affect other areas of American law?
Click to expand...

First, when it comes to basic rights remember that neither citizenship, nor our Constitution grants inherent rights. These constructs only serve to protect them in our society from infringement.

Second, I agree that while we must assert that all humans share these inherent rights...free access to our (or any) nation and the privileges such citizenship entails is NOT part of this essential "liberty" protection.

This is where those judges are erring with such broadly sweeping rulings IMO.
 
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Granted, there IS no "right to privacy" and Blackmun was demonstrably just making **** up, but hey.
 
Captain Adverse said:
Sorry, you are mistaken.

The ruling in Roe v. Wade , 410 U.S. 113 (1973), was based on a right to privacy in control of ones own body. It also held that this right only extended until viability of the fetus, at which point it is protected and cannot be aborted (with the exception it may occur to preserve the life of the mother. See Doe v. Bolton, 410 U.S. 179 (1973)).

This has NOTHING to do with being a "naturalized citizen." At best one might argue it as a birthright citizenship issue (under the 14th Amendment) since the child has not been born, only conceived, in the USA. But that is weak sauce in terms of your argument's premise. IMO you cannot conflate this with the Immigration issue.



First, when it comes to basic rights remember that neither citizenship, nor our Constitution grants inherent rights. These constructs only serve to protect them in our society from infringement.

Second, I agree that while we must assert that all humans share these inherent rights...free access to our (or any) nation and the privileges such citizenship entails is NOT part of this essential "liberty" protection.

This is where those judges are erring with such broadly sweeping rulings IMO.
Click to expand...

In discussions on this board, I was instructed that no protections of citizenship could be accorded to the unborn under law because they were not born and therefore were not citizens.

The 14th Amendment was cited in these references.

Hillary Clinton has also said as much:

Hillary Clinton: ?The Unborn Person Doesn?t Have Constitutional Rights?
<snip>
Clinton: Well, under our laws, currently, that is not something that exists.

The unborn person doesn’t have constitutional rights.

Now that doesn`t mean that we don’t do everything we possibly can in the vast majority of instances to, you know, help a mother who is carrying a child and wants to make sure that child will be healthy, to have appropriate medical support.

It doesn’t mean that you don’t do everything possible to try to fulfill your obligations, but it does not include sacrificing the woman’s right to make decisions.

And I think that’s an important distinction that under Roe v. Wade we’ve had enshrined under our Constitution.
<snip>
 
code1211 said:
In discussions on this board, I was instructed that no protections of citizenship could be accorded to the unborn under law because they were not born and therefore were not citizens.

The 14th Amendment was cited in these references.

Hillary Clinton has also said as much:

Hillary Clinton: ?The Unborn Person Doesn?t Have Constitutional Rights?
<snip>
Clinton: Well, under our laws, currently, that is not something that exists.

The unborn person doesn’t have constitutional rights.

Now that doesn`t mean that we don’t do everything we possibly can in the vast majority of instances to, you know, help a mother who is carrying a child and wants to make sure that child will be healthy, to have appropriate medical support.

It doesn’t mean that you don’t do everything possible to try to fulfill your obligations, but it does not include sacrificing the woman’s right to make decisions.

And I think that’s an important distinction that under Roe v. Wade we’ve had enshrined under our Constitution.
<snip>
Click to expand...

So if you were "instructed" that a peanut-butter and jelly sandwich had no rights because it was not a citizen would that have any weight in any argument? :roll:

You are making an appeal to authority, and IMO a weak one.

You are misusing (as do others) citations from the 14th Amendment.

The abortion argument often devolves around various talking points. Among which is a citizenship rights contention which is ultimately based on the Pro-Life argument that conception equates to humanity which should be protected from "murder" via the abortion process.

A corollary of this argument is that any "human being" conceived within the confines of the USA should be presumed a U.S. citizen protected by law from harm.

But that is only ONE way of looking at the argument, one primarily favored by Pro-Life adherents.

It is just an anti-abortion argument though, not a fact. Regardless, it has nothing to do with the standing law regarding abortion which is based on privacy rights rather than with citizenship, despite all the appeals to authority you make.

Meanwhile, I stand by my position that abortion arguments have no place in the Immigration discussion.
 
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Captain Adverse said:
So if you were "instructed" that a peanut-butter and jelly sandwich had no rights because it was not a citizen would that have any weight in any argument? :roll:

You are making an appeal to authority, and IMO a weak one.

You are misusing (as do others) citations from the 14th Amendment.

The abortion argument often devolves around various talking points. Among which is a citizenship rights contention which is ultimately based on the Pro-Life argument that conception equates to humanity which should be protected from "murder" via the abortion process.

A corollary of this argument is that any "human being" conceived within the confines of the USA should be presumed a U.S. citizen protected by law from harm.

But that is only ONE way of looking at the argument, one primarily favored by Pro-Life adherents.

It is just an anti-abortion argument though, not a fact. Regardless, it has nothing to do with the standing law regarding abortion which is based on privacy rights rather than with citizenship, despite all the appeals to authority you make.

Meanwhile, I stand by my position that abortion arguments have no place in the Immigration discussion.
Click to expand...


One of the "Minnesota Twins", Justice Blackmun addressed the idea of personhood directly as it is affected by the 14th Amendment.

https://www.ncbi.nlm.nih.gov/pubmed/20443281

<snip>
Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."
<snip>
 
code1211 said:
https://www.ncbi.nlm.nih.gov/pubmed/20443281

<snip>
Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."
<snip>
Click to expand...

...and so you make my argument for me. :roll:

Once again, the law as established under Roe v. Wade already protects viable fetuses from abortion without any reference to "citizenship" standing.

A citizen of another country cannot come to the USA and have an abortion once the fetus is considered viable.

The law under Doe v. Bolton allows late-term abortion only in cases of threat to the mother's life, when no other option to save the fetus while preserving her life is available.

Abortion has nothing to do with Immigration. If you can't see this then there is no use arguing.
 
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code1211 said:
Could be that I'm not catching the finer points of both arguments in this.

I seem to recall that among the various rationalizations in support of legalized abortion is the fact that the unborn have no rights because they have not yet been born and, of course, have not been naturalized.

Since they are not American Citizens, they are afforded no protections or immunities guaranteed under the Constitution or judicial precedent.

Recently, Liberal judges are awarding rights enjoyed by American citizens to folks who were not born in the USA OR naturalized. They seem to be saying that all people, regardless of legal definition, have the normal and usual rights and immunities accorded to citizens of the US.

The rulings establish rights that don't exist and deny Presidential authority that is Constitutionally established and defined.

Will this act of legal gymnastics come around to affect other areas of American law?

American citizenship legal definition of American citizenship

https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
Click to expand...

We have a dangerous situation in this country in that it is not the elected representatives of the people (the Congress) signed by the elected President of the country who decide what the law of the land will be. The law of the land is now determined by judges who somehow have been given power to dictate what the law of the land will be.

This was NEVER intended by the Founders or the people when they signed and the states ratified the Constitution of the United States. For the judges to do this is in itself unconstitutional.

IMO, even when the court declares a law unconstitutional, the power is not given to the court to overturn the law. It is incumbant upon the CONGRESS, sworn to uphold the Constitution, to overturn or amend the law. If they do not, and we the people believe our elected representatives are not fulfilling their obligation to uphold the Constitution, then it is up to us to deal with it at the ballot box or by recall of our elected representatives.

It is a very dangerous thing when the court takes upon itself to ignore the law of the land and put into effect what it thinks the law should be.
 
Captain Adverse said:
...and so you make my argument for me. :roll:

Once again, the law as established under Roe v. Wade already protects viable fetuses from abortion without any reference to "citizenship" standing.

A citizen of another country cannot come to the USA and have an abortion once the fetus is considered viable.

The law under Doe v. Bolton allows late-term abortion only in cases of threat to the mother's life, when no other option to save the fetus while preserving her life is available.

Abortion has nothing to do with Immigration. If you can't see this then there is no use arguing.
Click to expand...

Not saying that abortion has anything to do with immigration.

Only saying that the definitions that guide the award of citizen rights are applied unequally between the two considerations.

As I said, I may not be catching the finer points of the two arguments.

Is it appropriate to bestow the rights of American citizens on those who are not American Citizens?

Should we be prosecuting murderers in Kuwait, for example, as murderers in US Courts because they killed a human in Kuwait? Do all humans around the world have rights under US law?
 
AlbqOwl said:
We have a dangerous situation in this country in that it is not the elected representatives of the people (the Congress) signed by the elected President of the country who decide what the law of the land will be. The law of the land is now determined by judges who somehow have been given power to dictate what the law of the land will be.

This was NEVER intended by the Founders or the people when they signed and the states ratified the Constitution of the United States. For the judges to do this is in itself unconstitutional.
Click to expand...

If so then they had a chance to correct this back in 1796 when the first issue of judicial review was exemplified in the SCOTUS decision under Hylton v. United States, 3 U.S. 171 (1796).

https://en.wikipedia.org/wiki/Hylton_v._United_States

Then shortly thereafter it became settled law when SCOTUS ruled under Marbury v. Madison, 5 U.S. 137 (1803).

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Click to expand...
https://en.wikipedia.org/wiki/Marbury_v._Madison

Recall, the Constitution was ratified and became the law of the land in March 4, 1789.

These two rulings occurred in 1796 and 1803, respectively within 7 to 14 years of ratification.

If the "Founding Fathers" did not want this judicial power to be "constitutional," they certainly had the ability to eliminate it at the time.
 
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code1211 said:
Not saying that abortion has anything to do with immigration.

Only saying that the definitions that guide the award of citizen rights are applied unequally between the two considerations.

As I said, I may not be catching the finer points of the two arguments.

Is it appropriate to bestow the rights of American citizens on those who are not American Citizens?

Should we be prosecuting murderers in Kuwait, for example, as murderers in US Courts because they killed a human in Kuwait? Do all humans around the world have rights under US law?
Click to expand...

I already answered your questions in my first response:

Captain Adverse said:
First, when it comes to basic rights remember that neither citizenship, nor our Constitution grants inherent rights. These constructs only serve to protect them in our society from infringement.

Second, I agree that while we must assert that all humans share these inherent rights...free access to our (or any) nation and the privileges such citizenship entails is NOT part of this essential "liberty" protection.

This is where those judges are erring with such broadly sweeping rulings IMO.
Click to expand...
 
AlbqOwl said:
We have a dangerous situation in this country in that it is not the elected representatives of the people (the Congress) signed by the elected President of the country who decide what the law of the land will be. The law of the land is now determined by judges who somehow have been given power to dictate what the law of the land will be.

This was NEVER intended by the Founders or the people when they signed and the states ratified the Constitution of the United States. For the judges to do this is in itself unconstitutional.

IMO, even when the court declares a law unconstitutional, the power is not given to the court to overturn the law. It is incumbant upon the CONGRESS, sworn to uphold the Constitution, to overturn or amend the law. If they do not, and we the people believe our elected representatives are not fulfilling their obligation to uphold the Constitution, then it is up to us to deal with it at the ballot box or by recall of our elected representatives.

It is a very dangerous thing when the court takes upon itself to ignore the law of the land and put into effect what it thinks the law should be.
Click to expand...

The reality of the country today is that our politicians have assumed the position of a privileged class. Our elected representatives are more talented at getting votes than they are at exercising personal integrity or personal convictions.

I doubt that most have either.

They are more than willing to assume a political position to gain re-election. Due to this, we are not led by those with integrity. We are led by lying, cheating whores who will do anything to maintain their privileges.

Trump is more than willing to profess what he believes in order to try to get it accomplished. The lying whores surrounding him in DC are confused by this approach.

It's an interesting confrontation.
 
Captain Adverse said:
If so then they had a chance to correct this back in 1796 when the first issue of judicial review was exemplified in the SCOTUS decision under Hylton v. United States, 3 U.S. 171 (1796).

https://en.wikipedia.org/wiki/Hylton_v._United_States

Then shortly thereafter it became settled law when SCOTUS ruled under Marbury v. Madison, 5 U.S. 137 (1803).

https://en.wikipedia.org/wiki/Marbury_v._Madison

Recall, the Constitution was ratified and became the law of the land in March 4, 1789.

These two rulings occurred in 1796 and 1803, respectively within 7 to 14 years of ratification.

If the "Founding Fathers" did not want this judicial power to be "constitutional," they certainly had the ability to eliminate it at the time.
Click to expand...

Unfortunately the Founders being neither clairvoyant nor fortune tellers did not anticipate progressivism or other forms of aggressive courts who would ignore the intent of Marbury and instead of stating what the law is as the lawmakers intended would state what the law should be in the opinion of the court.
 
AlbqOwl said:
Unfortunately the Founders being neither clairvoyant nor fortune tellers did not anticipate progressivism or other forms of aggressive courts who would ignore the intent of Marbury and instead of stating what the law is as the lawmakers intended would state what the law should be in the opinion of the court.
Click to expand...

Forgive me for pointing this out, but neither are you clairvoyant nor a fortune teller so as to be able to read the minds and intentions of the Founders back then today. :shrug:

We have enough trouble trying to understand each other's goals and purposes today, much less try to figure it all out back then. The best we can do is read what they wrote, and what other's wrote of them to get a general feel for various issues currently up for debate.

The thing many people don't realize now is that those men and women in that era grew up under a system of common law, where the Courts did exactly what you now suggest they would be opposed to.

Common law courts would interpret and apply the laws passed by Parliament on a case by case basis, and any disputes of interpretation between jurisdictions would be passed up to the highest court to determine how the law applied throughout the land.

So the Founders would see nothing wrong with the process as applied to Federal law. After all, anything they did not agree with could be addressed via act of Congress or a new Constitutional Amendment.

That is STILL the case.

So if enough citizens believe something should be addressed by law or Amendment, they have that right to push for Congress to act.
 
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Captain Adverse said:
Sorry, you are mistaken.

The ruling in Roe v. Wade , 410 U.S. 113 (1973), was based on a right to privacy in control of ones own body. It also held that this right only extended until viability of the fetus, at which point it is protected and cannot be aborted (with the exception it may occur to preserve the life of the mother. See Doe v. Bolton, 410 U.S. 179 (1973)).

This has NOTHING to do with being a "naturalized citizen." At best one might argue it as a birthright citizenship issue (under the 14th Amendment) since the child has not been born, only conceived, in the USA. But that is weak sauce in terms of your argument's premise. IMO you cannot conflate this with the Immigration issue.



First, when it comes to basic rights remember that neither citizenship, nor our Constitution grants inherent rights. These constructs only serve to protect them in our society from infringement.

Second, I agree that while we must assert that all humans share these inherent rights...free access to our (or any) nation and the privileges such citizenship entails is NOT part of this essential "liberty" protection.

This is where those judges are erring with such broadly sweeping rulings IMO.
Click to expand...

That is an interesting point. The USSC defines as of which point of growth a human is protected from being killed. This essentially arbitrary definition constitutes a precedent for groups that may enjoy the Rights of the Constitution and from whom such rights might be withdrawn; even the right to live. This can and will be built on incrementally along paths of ideological bias. But this was clear from the start but ignored under the leftish paradigm.
 
Captain Adverse said:
Forgive me for pointing this out, but neither are you clairvoyant nor a fortune teller so as to be able to read the minds and intentions of the Founders back then today. :shrug:

We have enough trouble trying to understand each other's goals and purposes today, much less try to figure it all out back then. The best we can do is read what they wrote, and what other's wrote of them to get a general feel for various issues currently up for debate.

The thing many people don't realize now is that those men and women in that era grew up under a system of common law, where the Courts did exactly what you now suggest they would be opposed to.

Common law courts would interpret and apply the laws passed by Parliament on a case by case basis, and any disputes of interpretation between jurisdictions would be passed up to the highest court to determine how the law applied throughout the land.

So the Founders would see nothing wrong with the process as applied to Federal law. After all, anything they did not agree with could be addressed via act of Congress or a new Constitutional Amendment.

That is STILL the case.

So if enough citizens believe something should be addressed by law or Amendment, they have that right to push for Congress to act.
Click to expand...

I don't have to be clairvoyant or a fortune teller to know the minds and intent of the Founders. They left behind a wealth of documents that inform us as to their intent and purpose for the Constitution. And at some point, I believe I have probably studied all of them.

And that has nothing to do with THEIR provision that the people be able to amend the Constitution as necessary.
 
AlbqOwl said:
I don't have to be clairvoyant or a fortune teller to know the minds and intent of the Founders. They left behind a wealth of documents that inform us as to their intent and purpose for the Constitution. And at some point, I believe I have probably studied all of them.

And that has nothing to do with THEIR provision that the people be able to amend the Constitution as necessary.
Click to expand...

First, if you did study as much as you state then you would know that I am correct, and your "assumptions" about what they would think about judicial review are to say the least...less than correct. The facts already presented to you regarding their reaction to the case of Marbury v. Madison show that if nothing else.

Second, the power to pass laws and amend the Constitution has EVERYTHING to do with how to address any ills and concerns about how our Constitutional government works.

The fact that you don't recognize at least the second point undermines your entire argument. :coffeepap:
 
Captain Adverse said:
First, if you did study as much as you state then you would know that I am correct, and your "assumptions" about what they would think about judicial review are to say the least...less than correct. The facts already presented to you regarding their reaction to the case of Marbury v. Madison show that if nothing else.

Second, the power to pass laws and amend the Constitution has EVERYTHING to do with how to address any ills and concerns about how our Constitutional government works.

The fact that you don't recognize at least the second point undermines your entire argument. :coffeepap:
Click to expand...

"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482

"A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:298

"The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807. FE 9:68

"The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow, 1801. ME 10:223

"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to James Pleasants, 1821. FE 10:198

From Federalist #78
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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.
Federalist No. 78 | What Would The Founders Think?

. . .On this point, David P. McGinley has an interesting piece in American Thinker entitled Our Dying Constitution. In it he makes the bold statement that “Our Constitution is almost dead” because it has been subjected to judges who “ignore the actual text of the document” or who “redefine” it to reflect their own personal beliefs and feelings. . . .

. . .When judges disregard or redefine the plain words of our Constitution or make up things with absolutely no textual support, they render the document meaningless. In keeping with this practice, its proponents have invoked the Orwellian term “living constitution” when in actuality they have put it on its death bed. . .
The Power of the Judiciary | What Would The Founders Think?​

Rebut it if you can.
 
Side note: to the arguments

One thing many people do not know/or refuse to accept about what the founders created is that the federal government was never delegated any powers concerning the peoples lives liberty or their property, none.

this is what kept government limited and prevented the federal government from violating rights of the people, because if the federal government cannot make laws on the people, they cannot act, and if they cannot act you cannot have the violation of rights.

since government has stepped out of the limited government the founders created and assumed powers over the people, cases of law which would have would have never been heard by the federal courts have been and more will be, which is part of the problem.
 
AlbqOwl said:
"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482...

From Federalist #78
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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.
Federalist No. 78 | What Would The Founders Think?

. . .On this point, David P. McGinley has an interesting piece in American Thinker entitled Our Dying Constitution...The Power of the Judiciary | What Would The Founders Think?​

Rebut it if you can.
Click to expand...

Certainly:

Now I will have to respond in two posts since your quoted post takes up a lot of the 5000 allotted characters. I will address the general point and the Federalist Paper quote first.

Let me preface my response with this statement. Quoting one or two "Founding Fathers" to use as a broad brush for the views of ALL the people who worked to create the Constitution is fallacious. People never agree with everything other people think, feel, or believe, as exemplified in all the debates in this and other Forums.

So, if those "Founding Fathers" all agreed with Jefferson, then immediately after the Marbury decision Congress would have amended the Constitution to address judicial review. That does not appear to be the case.

In point of fact they had no problem doing so in other circumstances, since they did not hesitate to do so with the very first new amendment, the 11th Amendment enacted February 7, 1795:

...deals with each state's sovereign immunity and was adopted to overrule the U.S. Supreme Court's decision in Chisholm v. Georgia, 2 U.S. 419 (1793). "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Click to expand...
https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution

Now you quoted Jefferson four times, and that Federalist citation is attributed to Alexander Hamilton.

Let's address your Hamilton quote first. From that same publication:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
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The Federalist #78

I can only assume that you got your quote from some website supporting your argument. But is it clear from a reading of the entire publication that Hamilton was actually arguing that the relative weakness of it's power in comparison to the Executive and Legislative branches supported both a need for the judiciary to be independent of control, and to exercise a power of judicial review. In fact, further reading provides his explanations as to why this does not make the Court superior to Congress.

So clearly you did not read, did not understand, or selectively quoted in hopes a reader would simply assume you made a valid point. In fact, you misused the citation when making your point. (End of first response.)
 
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Captain Adverse said:
Certainly:

Now I will have to respond in two posts since your quoted post takes up a lot of the 5000 allotted characters. I will address the general point and the Federalist Paper quote first.

Let me preface my response with this statement. Quoting one or two "Founding Fathers" to use as a broad brush for the views of ALL the people who worked to create the Constitution is fallacious. People never agree with everything other people think, feel, or believe, as exemplified in all the debates in this and other Forums.

So, if those "Founding Fathers" all agreed with Jefferson, then immediately after the Marbury decision Congress would have amended the Constitution to address judicial review. That does not appear to be the case.

In point of fact they had no problem doing so in other circumstances, since they did not hesitate to do so with the very first new amendment, the 11th Amendment enacted February 7, 1795:

https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution

Now you quoted Jefferson four times, and that Federalist citation is attributed to Alexander Hamilton.

Let's address your Hamilton quote first. From that same publication:

The Federalist #78

I can only assume that you got your quote from some website supporting your argument. But is it clear from a reading of the entire publication that Hamilton was actually arguing that the relative weakness of it's power in comparison to the Executive and Legislative branches supported both a need for the judiciary to be independent of control, and to exercise a power of judicial review. In fact, further reading provides his explanations as to why this does not make the Court superior to Congress.

So clearly you did not read, did not understand, or selectively quoted in hopes a reader would simply assume you made a valid point. In fact, you misused the citation when making your point. (End of first response.)
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And further he said:

. . .Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . .​

Context is everything.
 
AlbqOwl said:
"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482

"A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:298

"The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807. FE 9:68

"The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow, 1801. ME 10:223

"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to James Pleasants, 1821. FE 10:198​
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(Second half) Now for Thomas Jefferson.

You know that case Marbury v. Madison? Did you realize that this case occurred at the beginning of the new administration of President Thomas Jefferson?

John Adams had appointed a number of Federal judges, including William Marbury whose appointment had already been approved by the Senate. Adams and Jefferson at this point were political opponents. Some of the appointment had not been delivered and Adams on his last day in office tried to make sure they did. Jefferson chose not to allow the undelivered appointments, and his Secretary of State James Madison did not send them out. Marbury sued to get a writ of mandamus from SCOTUS under the Judiciary Act of 1789, ordering the Secretary deliver his appointment.

Chief Justice John Marshall (also appointed by Adams) was presented with three issues and ruled as follows:

Did Marbury have a right to the commission? Yes, and it should have been delivered.

Do the laws of the country give Marbury a legal remedy? Yes, a writ of mandamus is appropriate.

Is asking the Supreme Court for a writ of mandamus the correct legal remedy? No, because the SCOTUS does not have jurisdiction, as it is an appellate court not a court of first review. That the provision of the Judiciary Act of 1789 allowing SCOTUS to issue writs of mandamus was un-Constitutional under Article III of the Constitution.

The first two holdings "pissed" (to say the least) Jefferson off, while the third firmly established the rule of Judicial review.

Please notice ALL of your Jefferson quotes occur AFTER this SCOTUS decision. Let's just say Jefferson was not a very forgiving man.

Still, Jefferson had no hand in writing the Constitution as he was serving as ambassador to France. He was also small central government "Articles of Confederation" supporter.

If one looks at his draft for the Constitution of Virginia 1783 one notes that all Judicial appointments are made by joint ballot of the Assembly, and all levels of court are not term limited, but hold office are as long as they remain in good behavior. They can be removed by impeachment. https://founders.archives.gov/documents/Jefferson/01-06-02-0255-0004

That just brings me back to the point that not all Founding Father's agreed on everything. Jefferson was also clearly upset about the Marbury decision. Yet where is the effort on Constitutional reform of this issue during his administration? (Crickets).

However, there is no real argument against his personal and political reasons for opposition to the increased power of ALL branches of the Federal government, including the Judiciary.

His views were clearly not shared by the majority of the Founders or we would still (if our nation didn't dissolve beforehand) be laboring under the Articles of Confederation.

As for the last citation, appeal to authority? So that is that gentleman's position...big deal. :shrug:​
 
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AlbqOwl said:
And further he said:

. . .Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . .​

Context is everything.
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Umm, isn't that what I've already said:

Captain Adverse said:
So the Founders would see nothing wrong with the process as applied to Federal law. After all, anything they did not agree with could be addressed via act of Congress or a new Constitutional Amendment.

That is STILL the case.

So if enough citizens believe something should be addressed by law or Amendment, they have that right to push for Congress to act.
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