Will a future Congress eliminate the extra-constitutional power of the Supreme Court?

Coach is Right ^ | 9/6/13 | Doug Book

[Oldpuppymax]

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Thomas Jefferson

For 200 years the Supreme Court has enjoyed virtually limitless authority to determine the constitutionality of both state and federal legislation. Known as “Judicial Review,” this power to “…invalidate [an executive or legislative] act if it is contrary to constitutional principles,” has made what the Founders believed the weakest of the federal branches into arguably the most powerful. (1)

There is no mention of judicial review in the Constitution. Rather, legal historians believe that famed Chief Justice John Marshall made a personal gift of judicial review to himself and his black-robed progeny in the 1803, Marbury v Madison majority opinion which...

[The Great RJ]

Interesting idea, but I am more and more favoring a state called constitutional convention as advocated by Mark Levin to address these and other issues.

[cotton1706]

To limit the judiary’s power, the executive and the legislative must have the will to just ignore their “opinions” when it’s warranted.

For example, during the Bush administration, the congress and the president, through the law, limited the jurisdiction of the judiciary on some war on terror matter. The Supreme Court ruled anyway and both the Bush Administration and the Congress complied with their “ruling” though they had no jurisdiction to rule.

If there is no pushback, i.e. limiting juriscictions, ignoring opinions when they exceed their authority, then the courts will just sieze more and more power. It’s the natural order of things.

[cripplecreek]

I’m a lot more concerned about the out of control power of the presidency and an attorney general who acts as personal prosecutor/defense attorney of the president.

[ALPAPilot]

a) John Marshall didn’t invent Judicial Review out of thin air, Alexander Hamilton mentions it in Federalist 78. He pointed out that it is implied in the Constitution.

b) The problem is not that the Supreme Court finds laws unconstitutional, it is that they do not find more unconstitutional.

c) All three branches of the government have overstepped their authority. If the people accept it, the blame rests on them.

[oldbrowser]

The only problem is that the congress is more messed up than the supreme court.

Of the three branches of government: legislature, administration, and judicial; none of them are functioning very well.

[NVDave]

I’ve got a better idea:

How about we impose a death penalty (public hanging would be nice) for all elected or appointed officials in the federal government who swear to uphold and defend the Constitution... and then use the Constitution as toilet tissue, justifying same with the usual BS we hear today?

There would be more than a few SCOTUS justices who would end up as worm food pretty quickly under my system, starting with the current Chief Justice.

[KrisKrinkle]

In the article:

There is no mention of judicial review in the Constitution.

And:

Article III, Sections 1 and 2 of the Constitution state:

Section 1.

“The judicial power of the States, shall be vested in one Supreme Court, and in inferior Courts as the Congress may from time to time ordain and establish…”...

The question begged is: Does "judicial power" include the power of "judicial review" or not?

[Jacquerie]

Agree. When the 17th amendment deleted vertical separation of powers between the states and feds, it allowed for consolidation of power at the national level. One hundred years later, congress makes some laws, scotus makes a few less, and the executive makes LOTS!

A state initiated amendment convention is our only hope to possibly restore our republican freedoms.

[Doug Loss]

But Federalist #78 doesn’t claim the power of judicial review resides solely with the courts. Should the states decide that a federal law is unconstitutional, regardless of whether the Supreme Court has passed on it or OKed it (Obamacare), they have every Constitutional right to refuse to allow it to be enforced within their boundaries. By the same token, the President has a responsibility to not sign bills he knows to be unconstitutional, and should not sign them just to see if the Supreme Court will invalidate them. And the Congress (yeah, fat chance) has a responsibility not to pass legislation it knows to be unconstitutional.

[ALPAPilot]

Of course judicial review does not reside solely in the courts. All branches have the responsibility. But it wasn't invented by John Marshall in Marbury v. Madison.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

As you have pointed out as well, the problem is not judicial review by the courts it is in most cases the lack thereof.