Replies

Ping! The thread has been posted.

Earlier threads:

Implied powers + Article 3 = unlimited power.

The answer isn't to check some branch against the judiciary. The answer is to expressly delegate federal powers, in a truly federal (not national) system.

You can't be federal and national at the same time. And you can't have limited powers AND implied powers, most especially when you have an unaccountable judiciary.

There is no authority that can remove them, and they cannot be controlled by the laws of the Legislature.

Not quite accurate, technically speaking.

Congress has the power to impeach them and remove them from office. Although it's hardly ever been used. There is no appeal from impeachment.

Congress also has the power to determine jurisdiction of the courts, which has been used only rarely and then not always wisely. There is also some ambiguity about what exactly this power means.

PS-- Intra-national checks never work to preserve liberty. The national branches may check each other, but they do so the same way seagulls check each other while fighting over crumbs. We the people are the crumbs.

Any true check on national power has to come from outside the national system, which, of course is impossible.

Hence, abolish national system.

13 But I say this system has followed the English government in this: while it has departed from almost every other principle of their jurisprudence under the idea of rendering the judges independent, which in the British Constitution means no more than that they hold their places during good behavior and have fixed salaries; they have made the judges independent in the fullest sense of the word.

This is quite true and has proved to be a problem. It wasn’t supposed to be as such though. Under Madison’s original arguments in the Constitutional convention, the judiciary needed to be an independent branch. I think his arguments still hold. That is the USSC should be independent. The problem though is that the USSC has taken upon itself to make law as opposed to negate law. The original arguments of Madison were consistent, the Bill or Rights made it less so, the subsequent amendments made it even more inconsistent and activist judges use that inconsistency for their own purposes.

Case in point, California’s gay marriage law. Under the original constitution and per Madison’s arguments, there would have been no federal case. It would not have fallen under Federal jurisdiction. However the due process clause extended the equal protection clause of the 14^th Amendment to the states. The equal protection clause implies (to some) that making a discrimination between the legislative definition of marriage and other definitions is prohibited. The final stroke is judges who decide to extend legislation to areas it was not intended rather than negate it. So a humble judge who thought that California’s law was unconstitutional would have negated California’s marriage law. Instead we have judges like Breyer who say, "you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."

So all that to say, the problem we have today is not necessarily judicial independence. The problem is judges who chose not to understand the premise of the constitution is that the branches check each other and where they don’t check each other, they balance each other. Brutus is arguing only one side, that there is insufficient balance once the judges are appointed. History has proven he is correct.

56 I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments and to melt down the states into one entire government for every purpose as well internal and local, as external and national.

Brutus is correct. National supremacy was Madison’s stated purpose at the constitutional convention. Madison – "the highest prerogative of supremacy is proposed to be vested in the National Govt." Madison’s argument that "states rights" would only mean as much as the National Government said they would mean has proven correct.

And with that out of my system, it’s on to the . . . .

Discussion Topics

At 9, Brutus points out that the Supreme Court has control over the Legislative branch. Should there be a way for Congress to overturn a Supreme Court decision, and what should it be? What would your first choices be for bad decisions that need to be reversed?

I think an amendment to the constitution is required. Congress or the states are insufficient here, I think. In the absence of law there is liberty. We are free to do as we can. Laws only serve to limit our options. Some limits are necessary and generally agreed upon. Where they are not generally agreed upon, there should be no law. At a minimum the constitution should be amended such that the USSC can only nullify laws rather than extend them.

Should the members of the Supreme Court have term limits, rather than lifetime appointment, and should they be submitted for reconfirmation to the Senate by the President? What would be the advantages and disadvantages of this?

I’ve toyed with this one. Two justices elected by an electoral college, every two years for a term of eight years with the president appointing the odd member above eight members make sense to me. That, by itself, would make the judges accountable but if they were to extend law rather than negate it, as the branch of last resort, they would have more power than the legislature. That would not be good. No set of words is a guard against tyranny.

Great post. OUTSTANDING discussion!

BUMP-TO-THE-TOP!