Judicial Review

Discussion in 'Law and Justice System' started by Wry Catcher, Jul 8, 2013.

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Is Judicail Review a proper function of the Supreme Court

Poll closed Oct 6, 2013.
  1. Yep

    50.0%
  2. Nope

    37.5%
  3. What's Judicil Review

    12.5%
  4. If and only if I agree with their decision

    0 vote(s)
    0.0%
  1. Wry Catcher
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    Wry Catcher Gold Member

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    Comments made in my thread Has our Government become Dysfunctional? had me wondering about the Supreme Courts power of Judicial Review (JR). Recently a number of regulars on this forum have expressed the opinion that JR isn't authorized by the Constitutions and when exercised by the Supreme Court its use is an abuse of power.

    For reference I read the following link from Wikipedia:

    Judicial review in the United States - Wikipedia, the free encyclopedia
     
  2. jwoodie
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    jwoodie Gold Member Supporting Member

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    Aside from judicial review, what is the function of the SCOTUS?
     
  3. CrusaderFrank
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    CrusaderFrank Gold Member

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    “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” -- Barack "Law Review President" Obama
     
  4. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    “To consider the Judges of the Superior Court as the ultimate Arbiters of Constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps—and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society but the people themselves.” - Thomas Jefferson

    No, in other words.
     
  5. C_Clayton_Jones
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    C_Clayton_Jones Gold Member

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    Those who express such an opinion only exhibit their ignorance.

    They also likely hold the incorrect notion that the Constitution is the ‘beginning’ of American jurisprudence, when in fact it’s the culmination of centuries of Anglo-American judicial tradition, dating back to the Magna Carta and the Assizes of Henry II, which included the doctrines of judicial review and the courts’ interpretive authority.

    And indeed judicial review was sanctioned by the Constitution as practiced by Colonial courts:

    “But that’s not in the Constitution” is consequently a failed and ignorant ‘argument.’
     
  6. RetiredGySgt
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    RetiredGySgt Gold Member

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    Article III clearly delegates authority and power to the Supreme Court to hear ALL cases involving the United States, US Law and any matter between the States.

    If an Individual or a State ( or more) have a dispute with the United States Government the Supreme Court rules on the matter either as primary or appellate.

    These powers are clearly stated in Article III. One argument used to try and claim the Court does not have the authority is that there are no checks and balanced. This is incorrect. Article III states that exceptions and specific regulations restricting the Court may be passed by Congress.

    There was a time when I too believed that the Court usurped the authority, but a clear headed reading of the Article III clearly gives this authority and power to the Court with the check being Congress.

    Article III section 2

    Article III | U.S. Constitution | LII / Legal Information Institute
     
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  7. Wry Catcher
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    Wry Catcher Gold Member

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    Bump. Some very good responses, I'd like to read more. Kevin K. needs to review the link provided in the OP. President Jefferson's opinion is just that, an opinion; others exist and are persuasive too. Best to get all the ideas before making a decision.
     
  8. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    Yes, and here's another opinion.

    "The resolution [Virginia Resolutions of 1798] supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature." - James Madison, Virginia Report of 1800

    In other words, the Virginia Resolutions accepted the idea that the Supreme Court could interpret the Constitution incorrectly, and there must be some check against this. The Report states that the executive and legislatures, in this regard, must have as much right to check the power of the judiciary as the judiciary has to check them.

    The Resolutions to which the Report refers, however, go even further in providing a check on unconstitutional laws passed by the federal government.

    "The states, who are parties thereto [of the Constitution], have the right, and are in duty bound, to interpose, for arresting the progress of evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them." - James Madison, Virginia Resolutions of 1798

    In other words, the states may nullify unconstitutional federal laws, regardless of the Court's opinion on them. It was also Madison's opinion that to find the true interpretation of the Constitution one must look at the state ratifying conventions to see what those who were in favor of the Constitution argued that its meaning was. After all, you can't argue that a compact means one thing when trying to convince people to support it, then do an about face and say it means something else after they have.

    Here Roger Sherman of Connecticut argues that the states would have recourse against unconstitutional power grabs by the federal government under the Constitution:

    "When the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it."

    At the New York ratifying convention, Alexander Hamilton argued:

    "The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding."

    Now this shows, of course, that the states do indeed have a say in the constitutionality of laws, that must obviously be independent of the judiciary which is merely an agent of the federal government. That the states have a say means that the judiciary does not necessarily have the final say at all, which is implied by judicial review.

    So how is it that nowhere is it argued that the federal government, through the judiciary, would have the final say over the interpretation of the Constitution prior to the ratification of the Constitution, and yet after its ratification we're merely supposed to accept its word that this is the case? If nobody ratified the document with this understanding, and, in fact, with the opposite understanding, then how did it happen?
     
  9. CrusaderFrank
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    CrusaderFrank Gold Member

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    "...judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void" -- Robert Yates, aka Brutus
     
  10. RetiredGySgt
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    RetiredGySgt Gold Member

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    Once again for the slow, Congress can rein in the Supreme Court any time they want.
     
  11. RetiredGySgt
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    RetiredGySgt Gold Member

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    Well except for that whole bit about Congress having the power to dictate to the Court what power it has.
     
  12. The2ndAmendment
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    I'm still trying to discover where Article V of the United States Constitution allows the Supreme Court to amend that precious document.

    Can you guys help me?

    Article V:
     
    Last edited: Jul 11, 2013
  13. CrusaderFrank
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    CrusaderFrank Gold Member

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    So what power should it have? Are they a court that can't rule on laws?
     
    Last edited: Jul 11, 2013
  14. Wry Catcher
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    Wry Catcher Gold Member

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    From the LINK in the OP:

    "In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the power to determine whether acts of Congress are constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia resolutions.[40] Six of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."[41]

    "Thus, five years before Marbury v. Madison, a number of state legislatures stated their understanding that under the Constitution, the federal courts possess the power of judicial review."
     
  15. The2ndAmendment
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    The2ndAmendment Gold Member

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    So if your claim, that prior the the establishment of Judicial Review in 1803, that the Courts had no powers or functions?

    Do you know how the courts had functioned and were intended to function before 1803?
     
  16. The2ndAmendment
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    The2ndAmendment Gold Member

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    Funny, because those very same states EMBRACED those doctrines not too long after during the Embargo under President Jefferson. Hypocrites.
     
  17. RetiredGySgt
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    Be so kind as to provide a link to a Court ever adding or subtracting anything from the Constitution. They do have the express authority and power to rule on what is and is not Constitutional. or perhaps you can explain why Article III lays all disputes involving the US at their door? What does that mean? How about the express power and authority to determine what ALL US laws mean? That too is in Article III as I quoted. The check on this power is Congress.
     
  18. RetiredGySgt
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    Article III Section 2.

    Perhaps you can explain what that means?
     
  19. The2ndAmendment
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    The2ndAmendment Gold Member

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    It means precisely what it says, in plain language:

    The jurisdiction of the Supreme Court (and other inferior Article III courts) is LIMITED to those laws arising under the Constitution, which is a compact between the States. The Supreme Court cannot rule on those laws outside the limitations of the Constitution, and must therefore dismiss the charges, as such proceedings would infringe on the rights of the Sovereign States, the parties to the Constitution, who established and ordained the charter (Constitution).

    It's self declared intellectuals that have diabolical motives that would tell you the Constitution means anything OTHER than what it says.

    http://oll.libertyfund.org/?option=...itle=683&chapter=107120&layout=html&Itemid=27
     
    Last edited: Jul 11, 2013
  20. Wry Catcher
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    Wry Catcher Gold Member

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    From the LINK in the OP:

    "Court decisions from 1788 to 1803[edit]Between the ratification of the Constitution in 1788 and the decision in Marbury v. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified thirty-one state or federal cases during this time in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld but at least one judge concluded the statute was unconstitutional.[32] The author of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."
     

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