Judicial Review Poll and Discussion

Discussion in 'Law and Justice System' started by Missourian, Jan 4, 2011.

?

Judicial Review is?

  1. Constitutional

    50.0%
  2. Unconstitutional

    12.5%
  3. Necessary for interpretation

    37.5%
  4. Unnecessary, a strict reading is sufficient

    12.5%
  5. I don't know/I don't care/I just like to vote

    12.5%
Multiple votes are allowed.
  1. Missourian
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    Missourian Gold Member

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    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?
     
  2. Missourian
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    Missourian Gold Member

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    Nobody interested?

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

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    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
     
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  4. Oddball
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    Oddball BANNED Supporting Member

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    ^^^^
    What he said.
     
  5. RetiredGySgt
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    RetiredGySgt Platinum Member

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    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.

    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
     
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  6. editec
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    editec Mr. Forgot-it-All

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  7. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    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.
     
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  8. jillian
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    jillian Princess Supporting Member

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    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.
     
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  9. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    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.
     
  10. Baruch Menachem
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    Baruch Menachem '

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    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
     

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