Judicial Review: Time to dump Marbury v. Madison

TakeBackTheCourt.com ^ | 7/9/2005 | Ruben Obregon

[Cboldt]

That is flawed thinking. *ANY* "final authority" is a dictator. In a representative democracy everything should be open to eternal debate by the people and their representatives.

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.

[Borges]

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'?

[Noachian]

In a word, "impeachment."

If it worked -- yes. When has impeachment ever worked against a Supreme Court judge?

[Noachian]

Term limits on all branches of government is the best answer.

I agree. I have no argument with term limits at all.

[Cboldt]

I just found a link to Marbury v. Madison, and did not realize how awful that decision is!

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.

[goldstategop]

We need to pass a law declaring that Congress has the final word on constitutional interpretation and that federal courts do not have the power to pronounce on the validity of any federal law. That would be one way to override Marbury and eliminate the unwarranted power grab of the courts. Congress could do this since the Constitution is silent on the question of judicial review by the courts. If we want to remain a free country with a responsible judiciary bound by the rule of law, judicial review must be abolished.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[Borges]

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.

[spunkets]

"Stare decisis gives consistancy and stability to law. Very, very important."

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!

[You Dirty Rats]

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".

Utter waste of time. Any prospective nominee who advocated such irresponsible legal positions would be laughed out of the Senate.

[Cboldt]

If it [impeachment] worked -- yes. When has impeachment ever worked against a Supreme Court judge?

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.

[PeoplesRepublicOfWashington]

Don't forget to eliminate judicial immunity while you're at it. Under the current way our judicial system operates, a corrupt or incompetent judge can do anything he wants to you while functioning "in a judicial capacity"--he can lie, fabricate evidence, ignore the law, make up his own law to deprive you of your life, liberty, or property. We won't have freedom until we hold judges accountable for their behavior. Each and every judicial hearing needs to be taped, and each judge's performance and behavior needs to be continuously reviewed--not by his coopted peers, but by a body of citizens. Penalties for misbehavior should be severe.

[goldstategop]

Alexander Hamilton meant the Supreme Court ensures the lower courts function in a uniform manner and that the law is evenly applied. I do not think he envisaged in Federalist 78 or elsewhere the notion the Supreme Court would become a law unto itself, dictating social policy and the nature of the country's laws. Yet in the two centuries since Marbury that is what has happened: the growth of a judiciary not subject to any checks and balances.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[Brilliant]

No. A dictator is someone who controls EVERYTHING. We're just talking about one thing here. If you don't have a final authority on what the Constition means, then you have chaos. In the end, the Constitution has no meaning at all.

Of course, the present situation, with judicial activists interpreting the Constitution whatever way they please has also resulted in a Constitution with no meaning. What we need to do is go back to the situation we had until approximately the 50's, where the Supreme Court was the final authority on what the Constitution meant, but the Justices on the Supreme Court viewed themselves as bound by the language of the Constitution, and did not view themselves as exercising power to change things.

[Cboldt]

We need to pass a law declaring that Congress has the final word on constitutional interpretation ...

That's circular as can be.

[UnbelievingScumOnTheOtherSide]

Then why did everything else you wrote argue (correctly) AGAINST a final authority by arguing (correctly) for executive nullification a la Andrew Jackson in Worcester v Georgia (1832)?

[goldstategop]

The point is this: do we want to be ruled by judges who think they're Gods or will the people be masters of their own destiny. The struggle over judicial review is really a battle over who runs America. I trust the elected representatives of the people to interpret the laws more fairly than I do any judge to do so since in the final analysis, an elected representative remains subject to the people's oversight and is accountable to them for his conduct.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[Noachian]

Throwing out MvM would basically shrink us down to 2 branches and concentrate power.

If the Framer's intended the judiciary to have the final word over the Legislature why didn't they just spell out "Judicial Review" in The Constitution? Why were they so fearful of an out of control judiciary? Why did they limit the powers of the judiciary, and give Congress authority to limit their scope?

When you start answering these questions you get an idea of what the Framer's were afraid of, and why they concentrated power in the elected branches of government.

[Cboldt]

Stare decisis is only as good as what it protects!

Like so many things, good in principle, possibly corrupt in practice. In any event, not a principle worthy of hanging ones ultimate fate on.

[deport]

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...

---

At the time of this decision there were only six Justices on the court.... It was expanded to seven in 1807 and nine I think in 1837 or so.

[You Dirty Rats]

I trust the elected representatives of the people to interpret the laws more fairly than I do any judge to do so since in the final analysis, an elected representative remains subject to the people's oversight and is accountable to them for his conduct.

Mob rule worked so well in France in 1794, so let's try it here, eh?