Posted on 07/09/2005 3:15:41 PM PDT by 1stFreedom
Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review.
Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison.
Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception.
The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did.
A "strict constructionist" who adheres to Marbury v. Madison and the flawed principle of stare decisis (doctrine of precedent/settled law) won't do any good for the nation. It doesn't matter if George Bush were to fill the court with nine "strict constructionists" if they accepted stare decisis and Marbury V. Madison.
If you want to take the courts back from judicial tyrants, it's time to call for justices who won't be bound by terrible precedent and who recognize the authority of Congress and the inability of the court to rule on congressional legislation.
It's time to call for nominees who refuse to be bound by illicit precedents and illicit power grabs. Now is the window of opportunity to fix the courts, and it will take much more than nominees whose only qualification is that they are a "strict constructionist."
It's essential that you call your Senators and the White House Monday to demand nomination and approval of nominess who reject both Marbury V. Madison and "stare decisis".
It's up to you...
bump
fyi
bttt
BUMP.
I also think this issue is very helpful in determining whether or not one is truly pro-Constitution.
Stare decisis is a serious problem. It pretty much means, "No matter how bad, immoral, unconstitutional, destructive, or stupid the ruling was, it was made by nine philosopher kings in black robes, so we have to abide by it for eternity".
Judicial Review seems spelled out by Hamilton in Fedaralist Paper #78. What else would 'all Judicial Power' in the USC mean? Without it Congress could pass a law tomorrow cancelling all future elections and the citizenry would have no legal remedy.
>>Judicial Review seems spelled out by Hamilton in Fedaralist Paper #78
Nevertheless, it was not included in the Constitution. Understand that many ideas were debated, but few made them into this vital document.
The reason? There wasn't enough support for Judicial review..
Ping!
The problem with dumping Marbury is that there is nothing to replace it with. Someone has got to be the final authority on the interpretation of the Constitution. If it's not the Court, then who is it?
On the other hand, I do think that making Marbury v. Madison into a national debate is a good idea. The activists on the Court are so smug in their belief that they control everything. If they were faced with the prospect that the Congress and the President would no longer accept the Marbury v. Madison decision, then they might moderate their extremism.
And the fact is that it's the acceptance of Marbury by the Executive and the Congress that gives the doctrine its bite. If the other branches of government would not accept it, then it's meaningless.
You seem to forget that the SC can do the same thing. What's to stop 5 of 9 legal elites from passing a law canceling elections?
Putting that kind of power in the hands of unelected elites is madness.
Someone would have to bring a lawsuit. What would that lawsuit be? That elections are unconstitutional? Please. A court can only rule for this side or the other. A legislature can pass any law they fancy and we have to have a judicial body monitoring them.
And give it to ...? Congress? Uh, no.
link is dead.
Certainly not the judiciary.
The Framers were so suspicious of the judiciary that they gave it the least authority, and feared it the most.
Today we have a history of what an unfettered judiciary is capable of. That's something the Framer's didn't have.
We have only to look at our activist courts and see the results of appointing people to powerful lifetime positions free from accountability.
Just until its overturned by a new SCOTUS or by constitutional amendment. Stare decisis gives consistancy and stability to law. Very, very important.
As for Marbury vs. Madision who else but the SCOTUS is to decide whether Congressional Legislation confirms to the Constitutional mandates? It's part of checks and balances. The way to change the Court's decisions is by changing its members.
It makes a farce of the amendment process outlined in the Constitution, since Congress could just override any part of the Constitution with a simple majority
The Framers of the Constitution, and those who voted to approve it were mostly still around when Marbury was decided and could and would have amended the Constitution to overrule it if they had not felt it to be what they had intended.
So9
Well it has to be one of the three branches. If not the Judicial then the Executive? You want to have a Monarchy? What is feasible is a Constitutional amendment limiting Federal Judges to one 12 year term.
Fact is that the decision was NOT accepted at the time it was issued and Mr. Marbury NEVER recieve the commission he had sought. President Madison noted their ruling then ignored it. It wasn't until the 20th century that this ruling began to be abused by activists on the court!
And the fact is that it's the acceptance of Marbury by the Executive and the Congress that gives the doctrine its bite. If the other branches of government would not accept it, then it's meaningless.
AMEN and amen!
That's just to get it in front of the court. Once there all sorts of mischievous can be done.
...and we have to have a judicial body monitoring them.
And, who monitors the judicial body?
What we have now is a system of unaccountable jurists who "interpret" the Constitution as they see fit.
Statutory law, yes.
Constitutional law, no.
The phrase, "What the law is," is to choose between the Constitution and the Congress. In the case at hand, the plaintiff was asking for the Supreme Court to exercise a power that the Constitution did not grant to the Supreme Court. The plaintiff was (rightfully) denied the remedy requested.
Term limits work for other politicians, why not judges?
A 12 year term limit would give judges the "independence" they say they need, while automatically limiting the damage any one judge can do. It also has the benefit of bypassing a do-nothing Congress.
Well, the Congress scares me just about as much as the Judiciary. Unfettered power in the hands of our money-grubbing, never seen a social program I wouldn't spend money on, hope to find a new way to screw the American people today Congess-critters is certainly the path to destruction.
bump
You can get rid of an elected congressman, how do you get rid of an unelected judge with a God complex?
All politicians should be disposable in some fashion, but judges hang on like leeches.
But stare decisis can be abused, as O'Connor did in Planned Parenthood v. Casey.
Oh?
Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The fact is, that SCOTUS is the Constitutional last word on the Constituitonality of any particular law. The concept(s) was contained in English Common law.
The 14th was added to include controversies between a particular State and any citizens thereof. The reason was to protect federally recognized rights that were being trampled by the States.
This is one of the best editorials I've ever read on Marbury v. Madison, and even better is the fact that it's short and straightforward.
Well, the correct response is "impeachment". OTOH, how do you make that happen when almost half the country is cheering the activists on? I'll admit I don't know.
Constitutional one twelve year term then. You would get support from both sides for this since each would think it limits the 'damage' the other side can do. And with every Presidential election we would know exactly what's at stake.
I guess everyone was afraid George Washington would become a King. Unfortunately, it appears he appointed 9 Kings to decree Marbury v. Madison and thereby negate the constitution of the United States the first time the Supreme Court found itself in a bind...
My link for Marbury v. Madison is:
I use all Caps for the link (http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm) because it is what I consider informative...
In a word, "impeachment." Ultimately, impeachment is meant to be a political tool too, if the judges don't follow the will of the people.
You may be able to get rid of him, but the one you put in his place will love the power and money just as much. Term limits on all branches of government is the best answer.
Has nothing to do with judicial review. Judicial Review was given to the SCOTUS in the Constitution. Stare decisis includes decisions made under the fundamental fact of jurisdiction and power given the SCOTUS by the Constitution.
Remember that it was a majority of judges who "passed a ridiculous law", from the bench, making abortion legal, and 40+ million souls have died as a result.
So, judges have literally gotten away with mass murder, and we have no way to "vote them out" after 40+ years.
You're so worried about the Congress that you seem to gloss over the misdeeds of the judiciary without a blink of the eye.
The thinking isn't flawed at all. The degree of action and reaction is meant to be measured and "timed" (easier to unelect a president, harder -- but not unreasonable -- to impeach a judge for political reasons).
Eternal debate is always settled, eventually, by force or threat of force.
So Hamilton, Marshall, Scalia, Bork and over 2 centuries of Constitutional law down the drain then? Again what do you think is meant by the term 'all Judicial Power'?
If it worked -- yes. When has impeachment ever worked against a Supreme Court judge?
I agree. I have no argument with term limits at all.
Very few people alive today have taken the time and trouble to understand the legal mumbo jumbo therein, let alone synthesize its principle.
Based on your opinion that the decsion is awful, I think you are not one of those people.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
There are bad judicial decision just like there are bad laws. the system we have no is as good as it gets. There has never been a better one in human history. Throwing out MvM would basically shrink us down to 2 branches and concentrate power. There is nothing stoppping Federal and State Legislatures from passing a Right to Life Constittuional amendment. Or appointing better Justices. Or passing a Term Limit Amendment.
Not anywhere near as important as making sure Constitutional rights and the Constitution are protected. The SCOTUS ruling upholding all the various State and fed bureaucratic nitpicking laws are clearly unconstitutional, yet SCOTUS ruled contrary to that. Stare decisis is only as good as what it protects!
Utter waste of time. Any prospective nominee who advocated such irresponsible legal positions would be laughed out of the Senate.
It hasn't. But it is historical fact that when impeachment of a SCOTUS justice was attempted, it was based on a political issue. The people have "the power," if they learn how to use it.
Once half the population learns it can vote largess for itself, from the public treasury, well, all bets are off. Game over.
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