Judicial Review: Time to dump Marbury v. Madison

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

[Cboldt]

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)?

Can you rephrase that? I don't clearly understand your point or question.

My point is that the Constitutional system of checks and balances necessarily permits SCOTUS to override Congressional law, and Congress to ovverride SCOTUS (via impeachment), and in between, the people intervene via elections.

[Wonder Warthog]

"Someone has got to be the final authority on the interpretation of the Constitution. If it's not the Court, then who is it?"

The people, through their elected representatives in Congress and the state legislatures. If Marbury vs. Madison had been handled CORRECTLY, the court would have informed the Congress of a Constitutional conflict (or lack of Constitutional authority), and recommended that a Constitutional Amendment correcting or clarifying the identified problem be passed.

Instead, John Marshall usurped the power from the people on behalf of the Judicial branch. We are reaping the results of that today.

[Borges]

My interpretation of 'All Judicial Power' is Judicial review. It was Hamilton's as well. And Marshall's. And Scalia's. And Bork's.

[spunkets]

"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. Congress could do this since the Constitution is silent on the question of judicial review by the courts.

See #31. What do you think the phrase, "all cases of law and equity arising under this Constitution" means? Hmmmm?

[goldstategop]

The idea is the courts look to Congress on what is constitutional and they follow its rulings. A court could only declare a law ultra vires that is, a law that makes something not delegated to Congress by the Constitution. With judicial review gone, all other laws are presumed constitutional and the courts have a manifest duty to uphold them. Nothing circular about it.

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

[x]

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.

We can argue forever about what the law should be and endlessly revise and amend it. But we do need some surety about what the law is at any given time. Who owns the property? Who has the right to vote? If you can't give clear answers to such questions at a particular moment, then force rules (or else political and legal pettifogging and chicanery that eventually gives way to force).

In political debates people often assume that there are only two big alternatives: liberty, republicanism, or democracy on the one hand, and tyranny on the other. But the third alternative is the "failed state" which is too weak to impose law on anarchy. Such countries find it impossible to establish law and order, and usually collapse into tyranny.

For the Jeffersonian or libertarian political debate is a struggle between liberty and tyranny. For Washington or Hamilton, the prospect of a "failed state" torn apart by irreconcilable conflicts was a very real possibility and one that needed to be avoided. The idea of some arbiter who could compel the legislature to abide by the Constitution looked like a good idea, given the alternative of each faction taking up arms to prove that it had the right view of things. Whether or not the court has gone too far since the days of John Marshall is another matter.

[PeoplesRepublicOfWashington]

Someone has got to be the final authority on the interpretation of the Constitution. If it's not the Court, then who is it?

The prevailing understanding today--at least the functional one--is that the Constitution means whatever at least 5 of 9 Supreme Court justices say it means. My read of the Constitution is that it means whatever 2 of the 3 branches of the federal government say it means. A defender of the current practice can argue that the Court can assume that the executive and legislative branches are aware of their decisions, and if they disagree they have remedies to change any decisions they don't like--e.g., the legislative branch by passing a law, limiting the scope of the Supreme Court's jurisdication (a power specifically provided to Congress in the Constitution), initiating an amendment, or impeachment; the executive branch by ignoring the ruling. The legislative and executive branches are in turn held accountable to the electorate. The problem--the legislative and executive branches have failed to use these rememdies, thus granting the judicial branch with enormous extra-Constitutional authority. To take it further, the electorate has tacitly gone along with this course of appeasement.

[Borges]

That's why we should limit them to one term. However Hamilton explicitly stated that a Judiciate would have to declare a law void if it was repugnant to the Constitutional. If you intepret that otherwise then perhaps you're seeing a penumbra? :-)

[Cboldt]

The idea is the courts look to Congress on what is constitutional and they follow its rulings. A court could only declare a law ultra vires that is, a law that makes something not delegated to Congress by the Constitution.

Have you read Marbury v. Madison? The plaintiff asked for a remedy that Congress passed, that the Constitution forbid. ANd you say the court is then, faced with that, to choose Congress?

[spunkets]

"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."

Right. Let's see there's Hillary, Durbin, Kennedy, Boxer, Pelosi, ect... The people's oversight sucks.

[Wonder Warthog]

"The fact is, that SCOTUS is the Constitutional last word on the Constituitonality of any particular law. The concept(s) was contained in English Common law."

No, actually it is NOT. FINAL authority lies with the people, via Congress and the state legislatures according to the stated amendment process.

[Borges]

Congress can only limit the Supreme Court through Constitutional Amendment. It's only the Appellate courts they can affect through laws.

[goldstategop]

You're talking about lawsuits, legal controversies and issues about how to apply the law. I don't see anywhere in said phrase you cite a mention the courts get to override Congress. In the Constitution, to the contrary, it is Congress alone that creates inferior courts, appropriates money to run them, and determines their jurisdiction and the sort of cases they hear.

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

[Torie]

Rejecting Marbury V. Madison means that any Congressional statute is ipso facto Constitutional. Is that what you mean?

[goldstategop]

Hamilton meant ultra vires as I did. That's the only sort of power British and until recently, Canadian courts where allowed. Other than that Parliament was the last word on the nature of the law.

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

[Borges]

MvM does not prevent amending the Constitution.

[Cboldt]

If the Framer's intended the judiciary to have the final word ...

In a system of checks and balances, NO branch has the final word.

[goldstategop]

Exactly. The only way a federal statute can be repugnant to the Constitution is if it exceeds its terms of lawful authority. Otherwise, the law is presumed to be constitutional.

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

[UnbelievingScumOnTheOtherSide]

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.

Do you think through what you write or was the contradiction of yourself intentional. Having no final authority does not mean chaos. It means you don't force an answer until there is consensus. The proper way to do that is keep the three branches of government going around with each other until there is agreement. When you define a system you cannot choose or know who will be administering it in the future. Therefore you must build it to withstand men. Federalist #78 clearly implied that the executive and its police power is not a rubber stamp for judges. And Marbury v. Madison says EXACTLY THE SAME THING. The problem is that everybody pays attention to the nullification of Congress but ignores the admission that the Court could not order the President to do anything. If that second part were still recognized there would be no problem.

[spunkets]

" FINAL authority lies with the people, via Congress and the state legislatures according to the stated amendment process."

State legislatures are irrelevant. The Constitution can be Amended, but then the Constitution itself is changed and the point of judicial review is mute.