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.
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