Posted on 01/19/2007 7:14:00 PM PST by Gelato
I already have. Read post #314. Actually read it and think about it this time.
"Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is...the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law."
...every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss."
(So much for "emanations and penumbras...)
bump
Could you please show us which law it struck down?
The Court is striking down an act of the legislature, which they find unconstitutional. If the legislature's opinion was equal to the court's opinion on what is or what isn't unconstitutional, then the court wouldn't have stuck any law down at all, because the legislature, by virtue of taking an oath to the Constitution and passing the legislation, had already declared that they thought the act was constitutional.
Your understanding is based on the inference you gather from the decision, not on the actual words. In declaring its own right to refuse to apply an unconstitutional law, the court did NOT determine that the other two branches have no right of constitutional review. If anything, the court affirmed its own limitations under the Constitution. Law is only law if it is constitutional.
"A law repugnant to the constitution is void." -- Marbury vs. Madison
What happens, as in Massachusetts, when the court makes an unconstitutional decision? Are the other branches obliged to follow? According to Marbury, NO.
PREAMBLE.
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.
Chapter III, Article V
All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.
I'm curious as to when you think the Executive Branch and the Legislative Branch in the Commonwealth of Massachusetts gave their constitutional power over marriage issues to the Judicial Branch.
Butting right in, I don't agree with a word of it. Jefferson was something of an ideological nutter at times. He was fortunate to have Madison to restrain him from some of his worst impulses - - very fortunate.
If the courts did not have the final say on the meaning of legal words, then the legislature and/or executive could claim they meant anything they found convenient, and laws would cease to have teeth, and we would become a nation where the executive could claim the laws meant whatever it found convenient, without much check. Yes the legislature could then pass another law, subject to executive interpretation, and on and on, with impeachment and conviction being the only ultimate check. The Constitution of course would be rendered totally toothless, because if the courts can't rule that a statute is unconstitutional, then just who can?
On this matter, Marshall was totally wise and right, and Jefferson totally unwise and wrong.
I simply lay claim to the fact that the court is not the only one bound by the duty to understand, interpret and implement the Constitution. The other two "co-equal and co-sovereign" branches of government have an exactly equal duty to do so.
So do the people. As Josesh Story said, "...every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss."
Your position leaves NO check on the Judiciary.
You know you're winning the debate when all they can do is use the liberal tactic of name-calling.
I really don't see how their advocacy for judicial supremacy furthers conservatism and self-government.
In the matter we are discussing, he showed incredible foresight.
Let me ask you: Do you think this court tortured the plain meaning of words in the Goodridge case?
You mean courts are supposed to follow written constitutions? What a concept. I thought they can do whatever they want with impunity.
Touche.
When the rubber meets teh road, somebody has to have the final say. If you don't like the court's take, impeach, convict and remove, wait for replacements, or pass a new law or Constitutional amendment.
Right. That's working out really well, isn't it.
/s
Yes. The court made an errant decision. So now one needs to amend the state constitution. Frankly, as I have posted before, I would do away with state constitutions, except on governmental structural matters. All they do, is empower state court robes.
Actually, Rehnquist said that you can't impeach a judge for his decisions.
So, according to him, and you, the people of the United States have no recourse.
You just don't have a majority, or supra majority, depending on the context, that agrees with you, that is all.
And y'all accuse me of having radical views.
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