Political Theory

Re: Judicial Review

scineram — Sun, 24 Aug 2008 03:11:39 GMT

That is right. I never understood Kinsella. If something conflicts with federal laws or the Constitution allegedly the Supremes shall hear it and decide.

Re: Judicial Review

krazy kaju — Sun, 24 Aug 2008 02:44:08 GMT

Why not look at the text?

Article III, Sections 1 and 2

Section 1 - Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (Amended)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

11th Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

I'd say that judicial review is a power of the Supreme Court, since trespassing the Constitution is like trespassing any other law.

Re: Judicial Review

Deist — Sun, 24 Aug 2008 02:22:24 GMT

Yes, One was Hylton v. United States dealing with the constitutionality of a carriage tax, another was one called the Hayburn's Case dealing with protection of judicial independence against legislative enroachments, and another was Hollingsworth v. Virginia which dealt with the powers of the presidency in cases of the constitutional amendment process (they decided the president clearly cannot veto an amendment since it is totally up to two thirds of federal congress and then two thirds of the states).

Re: Judicial Review

Josiah Schmidt — Sat, 23 Aug 2008 03:43:12 GMT

So, I'm aware that Marbury v. Madison at least "affirmed" the authority of the Supreme Court to exercise judicial review. But does anyone know if the Supreme Court ever once used the power of judicial review pre-Marbury v. Madison?

Re: Judicial Review

scineram — Fri, 22 Aug 2008 20:49:34 GMT

billott1:
Fugitive Slave Law to stand

What is the problem with that? The Constitution mandated that slaves fleeing their owners must be returned.

Also, Social Security just provides General Welfare with Medicare, Medicaid.

Re: Judicial Review

Deist — Fri, 22 Aug 2008 18:35:19 GMT

Of course all governments contain the seed of their inability to control themselves.

Re: Judicial Review

Deist — Fri, 22 Aug 2008 18:33:13 GMT

The constitution was intended to be policed by all three branches. The Founders were no lovers of democracy and they realized the need for a branch to be thoroughly aristocratic in nature hence the judiciary, an unelected generally life time postion.

James Madison for instance and many other founders spoke of the inherent nature of judicial review in the text of the constitution only people like Thomas Jefferson who was never at the constitutional convention believed otherwise. People could take their own government to court and it could properly filter up the federal judiciary. The Supreme Court at best can strike down laws and at worst leave laws that went about the normal legislative process in place.

The difference between Judicial Review back then and now is that before the federal judiciary was meant to mostly police the other branches of the FEDERAL government and only intrude in very specific cases against the states (such as interstate tariffs, bills of attainder, etc). However if you ask me the Supreme Court has allowed itself to become a rubberstamp for majority authoritarianism on all levels of government even allowing states to place explicit barriers to interstate trade.

The court used to strike down up to two hundred laws a year before the New Deal but it is a sorry institution now and defers to the elected branches nearly all the time. When it does strike a law down it makes the front page of the newspapers.

Re: Judicial Review

Bogart — Fri, 22 Aug 2008 02:42:54 GMT

Of course recently, the dis-respect for the Constitution increased dramatically during the War of Norther Agression and massively after the passage of the Federal Reserve Act. Then the real killer came in the 1930s with the Gold Robbery and the passage of Anti-Social In-Security.

Re: Judicial Review

ama gi — Fri, 22 Aug 2008 02:38:28 GMT

I don't pretend to be an expert, but I tend not to think so.

According to the Constitution, a law must pass through a majority of the house and senate and receive the approval of the President in order to go into effect. The President and members of the house and senate must run for re-election at regular intervals, and the commander-in-chief must surrender his position after eight years--all this, because the Founding Fathers (mistakenly) believed that these various restrictions would curb the corrupting influnce of political power. In light of these facts, it is absurd to claim that the Founders intended for five unelected judges, appointed for life, to have the power to override the decisions of hundreds of elected legislators.

Does that answer your question?

Re: Judicial Review

Bogart — Fri, 22 Aug 2008 02:36:49 GMT

No. The founders did not intend to have the court as the sole arbitrator of what is Constitutional and what isn't. The founders intended to have the Congress respect the Constitution first and not view it as something to work around. Of course the Congress is not allowed to give its powers to other parties either. So the power to declare war, make a budget, etc is vested entirely in the congress.

Don't worry. The courts, congress and president have not had any respect for constitution in the past 200 years. Jefferson attacked the pirates at Tripoli, Washington and Hamilton put down the Whisky Rebellion, Adams passed the Alien and Sedition Acts, the Supreme Court allowed Dred Scott AND the Fugitive Slave Law to stand, etc.

Re: Judicial Review

Morty — Fri, 22 Aug 2008 02:24:46 GMT

Freiheit:
Was the Constitution intended to grant this power to the Supreme Court?

I'd like to hear your views.

Does it explicitly say that the Supreme Court does? If yes, then yes. If no, then no.

The Constitution is easy like that.

Re: Judicial Review

scineram — Fri, 22 Aug 2008 02:15:19 GMT

Which means the Supreme Court in practice.

Re: Judicial Review

Knight_of_BAAWA — Fri, 22 Aug 2008 02:11:01 GMT

All branches and the states are supposed to decide upon the constitutionality of laws.

Re: Judicial Review

scineram — Fri, 22 Aug 2008 02:06:26 GMT

Who knows? Cannot read minds 200 years ago.

Re: Judicial Review

Josiah Schmidt — Thu, 21 Aug 2008 20:49:44 GMT

bump?