Judicial Review

[Wry Catcher]

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

 

[jwoodie]

Aside from judicial review, what is the function of the SCOTUS?

 

[CrusaderFrank]

“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

 

[Kevin_Kennedy]

“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.

 

[C_Clayton_Jones]

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

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:

The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. By the early seventeenth century, English law subjected the by-laws of corporations to the requirement that they not be repugnant to the laws of the nation. The early English settlements in Virginia and Massachusetts were originally corporations and so these settlements were bound by the principle that colonial legislation could not be repugnant to the laws of England. Under this standard, colonial lawyers appealed approximately 250 cases from colonial courts to the English Privy Council, and the Crown reviewed over 8500 colonial acts.

After the American Revolution, this practice continued. State court judges voided state legislation inconsistent with their respective state constitutions. The Framers of the Constitution similarly presumed that judges would void legislation repugnant to the United States Constitution. Although a few Framers worried about the power, they expected it would exist. As James Madison stated, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” In fact, the word “Constitution” in the Supremacy Clause and the clause describing the Supreme Court’s jurisdiction appeared to give textual authorization for judicial enforcement of constitutional constraints on state and federal legislation. Indeed, before Marbury, Justice Chase observed that although the Court had never adjudicated whether the judiciary had the authority to declare laws contrary to the Constitution void, this authority was acknowledged by general opinion, the entire Supreme Court bar, and some of the Supreme Court Justices.

The Yale Law Journal Online - Why We Have Judicial Review

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

 

[RetiredGySgt]

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

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.

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.

Article III | U.S. Constitution | LII / Legal Information Institute

 

[Wry Catcher]

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.

 

[Kevin_Kennedy]

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.

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?

 

[CrusaderFrank]

"...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

 

[RetiredGySgt]

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.

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?

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

 

[RetiredGySgt]

"...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

Well except for that whole bit about Congress having the power to dictate to the Court what power it has.

 

[The2ndAmendment]

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:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

 

[CrusaderFrank]

"...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

Well except for that whole bit about Congress having the power to dictate to the Court what power it has.

So what power should it have? Are they a court that can't rule on laws?

 

[Wry Catcher]

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:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

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."

 

[The2ndAmendment]

So what power does should it have? Are they a court that can't rule on laws?

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?

 

[The2ndAmendment]

"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."

Funny, because those very same states EMBRACED those doctrines not too long after during the Embargo under President Jefferson. Hypocrites.

 

[RetiredGySgt]

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:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

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.

 

[RetiredGySgt]

So what power does should it have? Are they a court that can't rule on laws?

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?

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;

Article III Section 2.

Perhaps you can explain what that means?

 

[The2ndAmendment]

So what power does should it have? Are they a court that can't rule on laws?

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?

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;

Article III Section 2.

Perhaps you can explain what that means?

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

That the doctrine is applicable to the case of a contested power between the States and the General Government, we have the authority, not only of reason and analogy, but of the distinguished statesman already referred to. Mr. Jefferson, at a late period of his life, after long experience and mature reflection, says, “With respect to our State and Federal Governments, I do not think their relations are correctly understood by foreigners. They suppose the former are subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole. But you may ask, If the two departments should claim each the same subject of power, where is the umpire to decide between them? In cases of little urgency or importance, the prudence of both parties will keep them aloof from the questionable ground; but, if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.”

It is thus that our Constitution, by authorizing amendments, and by prescribing the authority and mode of making them, has, by a simple contrivance, with its characteristic wisdom, provided a power which, in the last resort, supersedes effectually the necessity, and even the pretext for force: a power to which none can fairly object; with which the interests of all are safe; which can definitively close all controversies in the only effectual mode, by freeing the compact of every defect and uncertainty, by an amendment of the instrument itself. It is impossible for human wisdom, in a system like ours, to devise another mode which shall be safe and effectual, and, at the same time, consistent with what are the relations and acknowledged powers of the two great departments of our Government. It gives a beauty and security peculiar to our system, which, if duly appreciated, will transmit its blessings to the remotest generations; but, if not, our splendid anticipations of the future will prove but an empty dream. Stripped of all its covering, the naked question is, whether ours is a federal or a consolidated government; a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the States, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, and violence, and force must finally prevail. Let it never be forgotten that, where the majority rules, the minority is the subject; and that, if we should absurdly attribute to the former, the exclusive right of construing the Constitution, there would be, in fact, between the sovereign and subject, under such a government, no Constitution; or, at least, nothing deserving the name, or serving the legitimate object of so sacred an instrument.

How the States are to exercise this high power of interposition, which constitutes so essential a portion of their reserved rights that it cannot be delegated without an entire surrender of their sovereignty, and converting our system from a federal into a consolidated Government, is a question that the States only are competent to determine. The arguments which prove that they possess the power, equally prove that they are, in the language of Jefferson, “the rightful judges of the mode and measure of redress.” But the spirit of forbearance, as well as the nature of the right itself, forbids a recourse to it, except in cases of dangerous infractions of the Constitution; and then only in the last resort, when all reasonable hope of relief from the ordinary action of the Government has failed; when, if the right to interpose did not exist, the alternative would be submission and oppression on one side, or resistance by force on the other. That our system should afford, in such extreme cases, an intermediate point between these dire alternatives, by which the Government may be brought to a pause, and thereby an interval obtained to compromise differences, or, if impracticable, be compelled to submit the question to a constitutional adjustment, through an appeal to the States themselves, is an evidence of its high wisdom: an element not, as is supposed by some, of weakness, but of strength; not of anarchy or revolution, but of peace and safety. Its general recognition would of itself, in a great measure, if not altogether, supersede the necessity of its exercise, by impressing on the movements of the Government that moderation and justice so essential to harmony and peace, in a country of such vast extent and diversity of interests as ours; and would, if controversy should come, turn the resentment of the aggrieved from the system to those who had abused its powers (a point all-important), and cause them to seek redress, not in revolution or overthrow, but in reformation. It is, in fact, properly understood, a substitute—where the alternative would be force—tending to prevent, and, if that fails, to correct peaceably the aberrations to which all political systems are liable, and which, if permitted to accumulate without correction, must finally end in a general catastrophe.

 

[Wry Catcher]

So what power does should it have? Are they a court that can't rule on laws?

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?

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."