Judicial Review Poll and Discussion

[Missourian]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

 

[Missourian]

Nobody interested?

I never knew that Judicial Review had been discussed but not included in the Constitution.

 

[Baruch Menachem]

Madison, who wrote the draft, wrote extensively about Judicial review in Federalist 75.

The plain language of the constitution is the court shouldn't be bothered by moot causes (as happens in a lot of other countries) but in clear 'cases and controversies.'

Marshal, who wrote the Marbury decision was also at the convention that wrote the constitution, along with Madison.


I think they would have had issues with Roe v Wade (very little discussion in that case about the constitutional issues, lots of weird doctor talk) but they both believed that if you are going to have a written constitution that is the supreme law of the land, then courts would have to make the determination as to what laws were enforceable and what laws were not.

If the law contrevenes the plain language of the constitution, there was no way it is enforceable

 

[Oddball]

^^^^
What he said.

 

[RetiredGySgt]

One can infer from the clauses of the Constitution that in matters between the State and the Federal Government the Supreme Court definitely must have jurisdiction to determine what the Constitution means. Thus by that inference they can also make such determinations in any Case that they have on the docket.

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.

While this clause does NOT say anything about a Court determining Constitutionality it DOES clearly State the SUPREME COURT has Original Jurisdiction in all Cases involving States and Federal Officials. Clearly that means the Supreme Court MUST have the power to determine Constitutional ISSUES in those cases. The next part limits the power of the Court via the Congress in appellate Jurisdiction.

Thus I would argue that Marbury got it right. Further I would argue that IF Congress does not want the Supreme Court to have that power in appellate cases they must pass a law stating so.

The United States Constitution - The U.S. Constitution Online - USConstitution.net

 

[editec]

Is interpretation on the Constitution necessary?

Yes

There is no mention of Judicial Review in the body of the Constitution.

No? Then why bother creating a Supreme Court?

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.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

They couldn't have interpreted it any other way, of course.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Yes, it is quite obvious your head is spinning.

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

That's interesting.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

No.

 

[goldcatt]

One also has to remember the conditions and legal system in place at the time. The constitution was drafted within the framework of a common law legal system, one where judge made law has precedential value (as opposed to code based legal systems in place in nations like France where precedent does not carry legal weight in future cases) and where judges are relied on for interpretation and application of law. In fact, there was much more judge made law under the old common law writ system than there is today, now that law and equity are merged and much more has been codified by Congress and the state legislatures.

The Framers were certainly familiar with other legal concepts like the civil law (code) system, they did not choose to enact them. IMO, it was simply believed that the judiciary would assume its traditional common law role. That role includes judicial review.

 

[jillian]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

 

[goldcatt]

Madison, who wrote the draft, wrote extensively about Judicial review in Federalist 75.

The plain language of the constitution is the court shouldn't be bothered by moot causes (as happens in a lot of other countries) but in clear 'cases and controversies.'

Marshal, who wrote the Marbury decision was also at the convention that wrote the constitution, along with Madison.


I think they would have had issues with Roe v Wade (very little discussion in that case about the constitutional issues, lots of weird doctor talk) but they both believed that if you are going to have a written constitution that is the supreme law of the land, then courts would have to make the determination as to what laws were enforceable and what laws were not.

If the law contrevenes the plain language of the constitution, there was no way it is enforceable

I'm not sure I would agree that the Framers would have trouble with a decision like Roe given the circumstances. Or alternatively, if they did, they would not have hesitated to use the amendment process to clarify the meaning of the 9th in order to limit the court's interpretation of it both by itself and in the context of the entirety, which is essentially what happened with the precedents Roe was primarily decided upon.

It's often missed in all that doctor talk that Roe isn't a stand alone case, but part of a line of precedents that predate it by about 50 years, perhaps 70 if one believes the Sisters of Mercy decision is the actual seminal case as some scholars do. And the root of those privacy cases is the reading of the 9th's reservation of unenumerated rights to the people and how that interplays with the indications of intent in other, enumerated rights and with the concept of substantive due process.

Agree or disagree with the outcome, but IMO the Framers wouldn't have seen it as outside the scope of judicial authority or of the common law tradition.

 

[Baruch Menachem]

Mostly what I remember from my reading of it from 30 years ago was that there was very little in the text about constitutional precedent and a whole lot of blather outside their areas of expertise that was not germane to the discussion.

Be that as it may, 9th amendment says there some things the government just can't do, and someplaces it just can't go. (Pay attention to that concept, Obamacare fans) and 14th amendment says you can't pass laws that affect different groups differently. All laws affect all persons equally. And as you point out, there is a long body of precedent in restricting state authority

 

[RetiredGySgt]

Mostly what I remember from my reading of it from 30 years ago was that there was very little in the text about constitutional precedent and a whole lot of blather outside their areas of expertise that was not germane to the discussion.

Be that as it may, 9th amendment says there some things the government just can't do, and someplaces it just can't go. (Pay attention to that concept, Obamacare fans) and 14th amendment says you can't pass laws that affect different groups differently. All laws affect all persons equally. And as you point out, there is a long body of precedent in restricting state authority

Under the section on the Judiciary which I quoted, the Supreme Court has ORIGINAL Jurisdiction in any case involving the States against each other or the Federal Government. Original Jurisdiction in any case involving Federal Government officials appointed by the Congress or the President.

That means the Supreme Court has the authority to determine what the Constitution means in those cases.

Further they have the authority in appellate cases as well UNLESS Congress restricts them in those cases. As far as I know Congress has NEVER restricted the Supreme Court in Appellate cases.

 

[goldcatt]

Mostly what I remember from my reading of it from 30 years ago was that there was very little in the text about constitutional precedent and a whole lot of blather outside their areas of expertise that was not germane to the discussion.

Be that as it may, 9th amendment says there some things the government just can't do, and someplaces it just can't go. (Pay attention to that concept, Obamacare fans) and 14th amendment says you can't pass laws that affect different groups differently. All laws affect all persons equally. And as you point out, there is a long body of precedent in restricting state authority

If you're interested, here's a link to the Roe decision (actually the Roe and Doe decision, since it was a combined case) so you can refresh your memory.

Roe v. Wade

Pay attention to Section VIII and subsequent to avoid all that doctor talk. Although it was necessary to perform the balancing act between the stated State interest and the constitutional measure being applied.

I'm not sure what you mean by the 9th Amendment stating here are some places the government just can't go in this context. After all, the decision in Roe specifically upheld the government's restriction not to "go" into what they considered a 9th Amendment reservation to the people.

The States aren't the only ones benefiting from reservations and restrictions on Federal authority under the 9th, and when the unenumerated rights specifically reserved for the people aren't indicated the courts did what was proper and examined the entirety to determine what types of rights would have been intended by that phrase. The right to self-determination in certain personal affairs of family, body, and home, otherwise known as "privacy", has been among those unenumerated rights afforded to the people by the 9th in precedent for about 120 years now. States' rights cannot be used as a argument to trample on individual rights, whether enumerated or unenumerated.

And if the Framers did, in fact, have an issue with the way the 9th was applied, I would reiterate they would have no qualms about using the amendment process to change the 9th and solve the root of the problem. That's what they made the process for.

 

[Baruch Menachem]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

It might be noted that when the court flies in the face and thumbs its nose at the plain text of the constitution as it did in Dred Scott and Plessy V Ferguson, or when it tries to exceed its real authority by trying to settle political issues in court (again, Dred Scott and Roe) the results are usually disastrous. I think it has been longer from now to Brown vs Board of Education than it was from Plessy to Brown, but we are still trying to repair the damage from Plessy.
The abortion issue really is political rather than court. Every western country including Ireland and Italy has legalized abortion. Not to the degree the US has, but still, the political process as messy as is, builds consensus. The US is the only country where Abortion as a point of politics causes so much grief and hysterics. 40 years on.

 

[midcan5]

Imagine five Scalias and four Alitos and presto chango - run for the hills. While my law knowledge isn't deep, my reading of history tells me too clearly, too often, and too tragically sometimes, we make it up as we go along. Where's a good scotus when you need one.

Judicial Review and the Supreme Court

 

[jillian]

Agree or disagree with the outcome, but IMO the Framers wouldn't have seen it as outside the scope of judicial authority or of the common law tradition.

and therein lies the problem... there is no understanding of what common law means. they think we live in a code state.

 

[jillian]

It might be noted that when the court flies in the face and thumbs its nose at the plain text of the constitution as it did in Dred Scott and Plessy V Ferguson, or when it tries to exceed its real authority by trying to settle political issues in court (again, Dred Scott and Roe) the results are usually disastrous. I think it has been longer from now to Brown vs Board of Education than it was from Plessy to Brown, but we are still trying to repair the damage from Plessy.
The abortion issue really is political rather than court. Every western country including Ireland and Italy has legalized abortion. Not to the degree the US has, but still, the political process as messy as is, builds consensus. The US is the only country where Abortion as a point of politics causes so much grief and hysterics. 40 years on.

great post... seriously ... great. and exactly. i would only add that in the case of dred scott, the issue hasn't been revisited by the court, but we can assume it would be overturned as the court corrects itself. as far as plessy is concerned, the court, as you noted, did correct itself, thankfully. common law is not a perfect system, but it is a good one so long as people don't ignore what a common law system is and try to re-make it in their own political image as the 'originalists' are.

you're also correct about the abortion issue. and if it were left alone for people to make their own moral determinations, instead of trying to politicize it, we'd be much better off. the only addition i'd make on that issue, is i believe ireland also outlawed abortion.

 

[goldcatt]

Agree or disagree with the outcome, but IMO the Framers wouldn't have seen it as outside the scope of judicial authority or of the common law tradition.

and therein lies the problem... there is no understanding of what common law means. they think we live in a code state.

To be fair, it's not like the common law tradition and history or a comparison to code law systems is widespread stuff in civics classes.

But when you're talking "originalist", going back to the common law as it existed in 1789 is one of the cornerstones of legitimate originalist interpretation. And you know a lot more law at that time than now was judicial, not statutory. All of equity was judicial law by definition. Without understanding the system or its history, how can one really be an originalist at all?

It's a conundrum.

 

[Intense]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

I view it as Constitutional and necessary, even if as a temporary resolution, until Congress can fully implement a Legislative Repair, or correct through Constitutional Amendment. The Problem is when the court abandons Reason, and Constructs through Imagination. This is an unintended abuse, which was clearly imagined, and has no root in Enumerated Powers. he General Welfare Clause, Enumerated Powers, Interstate Commerce Clause are clearly examples of Encroachment, clearly warned against in Original Intent. Hamilton had a hand in the underhanded scheme, which was true to his form.

 

[goldcatt]

It might be noted that when the court flies in the face and thumbs its nose at the plain text of the constitution as it did in Dred Scott and Plessy V Ferguson, or when it tries to exceed its real authority by trying to settle political issues in court (again, Dred Scott and Roe) the results are usually disastrous. I think it has been longer from now to Brown vs Board of Education than it was from Plessy to Brown, but we are still trying to repair the damage from Plessy.
The abortion issue really is political rather than court. Every western country including Ireland and Italy has legalized abortion. Not to the degree the US has, but still, the political process as messy as is, builds consensus. The US is the only country where Abortion as a point of politics causes so much grief and hysterics. 40 years on.

great post... seriously ... great. and exactly. i would only add that in the case of dred scott, the issue hasn't been revisited by the court, but we can assume it would be overturned as the court corrects itself. as far as plessy is concerned, the court, as you noted, did correct itself, thankfully. common law is not a perfect system, but it is a good one so long as people don't ignore what a common law system is and try to re-make it in their own political image as the 'originalists' are.

you're also correct about the abortion issue. and if it were left alone for people to make their own moral determinations, instead of trying to politicize it, we'd be much better off. the only addition i'd make on that issue, is i believe ireland also outlawed abortion.

The actual problem I have with Roe is the pretzel they twisted themselves into over standing. But once it was before them? IMO the method they used to resolve the arguments as presented was proper and well within both common law tradition and authority.

The outcome has been politicized, but by itself it was not originally a political issue. Certainly not at the time of ratification. Abortion and contraception as they existed at the time were both common, personal and simply not discussed outside of family let alone regulated by politicians. I think the Framers would have been very puzzled over why any level of government would want to involve itself in the issue at all.

That darn 19th century....they screwed up a lot of things in their furtherance of other disputes. We're still working a lot of the hangovers off, not just Dred Scott.

 

[jillian]

It might be noted that when the court flies in the face and thumbs its nose at the plain text of the constitution as it did in Dred Scott and Plessy V Ferguson, or when it tries to exceed its real authority by trying to settle political issues in court (again, Dred Scott and Roe) the results are usually disastrous. I think it has been longer from now to Brown vs Board of Education than it was from Plessy to Brown, but we are still trying to repair the damage from Plessy.
The abortion issue really is political rather than court. Every western country including Ireland and Italy has legalized abortion. Not to the degree the US has, but still, the political process as messy as is, builds consensus. The US is the only country where Abortion as a point of politics causes so much grief and hysterics. 40 years on.

great post... seriously ... great. and exactly. i would only add that in the case of dred scott, the issue hasn't been revisited by the court, but we can assume it would be overturned as the court corrects itself. as far as plessy is concerned, the court, as you noted, did correct itself, thankfully. common law is not a perfect system, but it is a good one so long as people don't ignore what a common law system is and try to re-make it in their own political image as the 'originalists' are.

you're also correct about the abortion issue. and if it were left alone for people to make their own moral determinations, instead of trying to politicize it, we'd be much better off. the only addition i'd make on that issue, is i believe ireland also outlawed abortion.

The actual problem I have with Roe is the pretzel they twisted themselves into over standing. But once it was before them? IMO the method they used to resolve the arguments as presented was proper and well within both common law tradition and authority.

The outcome has been politicized, but by itself it was not originally a political issue. Certainly not at the time of ratification. Abortion and contraception as they existed at the time were both common, personal and simply not discussed outside of family let alone regulated by politicians. I think the Framers would have been very puzzled over why any level of government would want to involve itself in the issue at all.

That darn 19th century....they screwed up a lot of things in their furtherance of other disputes. We're still working a lot of the hangovers off, not just Dred Scott.

I've always thought that the 'viability' issues were unnecessary. Roe should have been left as a straight balancings test... the interest of the government in regulation versus the interest of the individual.

and i agree. i think they would have been very puzzled, too. and i think they'd have rejected government intervention on the subject at least insofar as roe's parameters are concerned.