- Aug 10, 2009
- 168,037
- 16,519
- 2,165
- Banned
- #61
What a fine answer on point.
longknife, not being able to dispute the facts, resorts to ad hom, which he always does.
Navigation
Install the app
How to install the app on iOS
Follow along with the video below to see how to install our site as a web app on your home screen.
Note: This feature currently requires accessing the site using the built-in Safari browser.
More options
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an alternative browser.
You should upgrade or use an alternative browser.
Where does the constitution give federal judges the power to repeal laws?
- Thread starter ShootSpeeders
- Start date
longknife, not being able to dispute the facts, resorts to ad hom, which he always does.
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #62
First of all...you need to look up the definition of "repeal". Courts don't repeal laws....Legislatures do.
Courts may strike down laws as unConstitutional.
And yes...there is a difference.
HAHAHA. Tell us about this difference, you idiot!!!!!!!!!!!!!!!!
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #63
Hey stinky-butt. Who acts as a check on our unelected Supreme Court?
You answered your own question, you know.
They are unelected because they are selected by the President (Executive Branch) and approved by the Senate (Legislative Branch).
And Congress has oversight.
What oversight? In the entire history of america not a single SC judge has ever been removed by congress. Theoretically they could do it, but they never have and never will. That means NO ONE acts as a check on the supreme court and that needs to end.
think, you miserable wretch.
You answered your own question, you know.
They are unelected because they are selected by the President (Executive Branch) and approved by the Senate (Legislative Branch).
And Congress has oversight.
What oversight? In the entire history of america not a single SC judge has ever been removed by congress. Theoretically they could do it, but they never have and never will. That means NO ONE acts as a check on the supreme court and that needs to end.
think, you miserable wretch.
You asked who checks the Court, the Congress does.
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #65
[
You asked who checks the Court, the Congress does.
I just explained - no they don't. They could, but they never do. Congress has never in the history of this country used the impeachment process to remove a supreme judge. The unelected judges on the SC answer to no one!!!!
The Constitution DOES provide that laws passed in compliance with the Constitution are the supreme laws of the land. That is, Constitutionally valid Federal laws trump any State laws.-- United States Constitution, Article VI, Clause 2This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The implication lingers that a law passed in violation of the Constitution is not only not superior to any State law on the topic, it is in fact no "law" at all.
Who would say so? Naturally, it would be the judicial branch.
Nothing natural about that at all. In fact a strong argument can be made that the tenth amendment gives the states or the people the authority to decide the constitutionality of laws. THINK
No.
Of the three branches in the national government, it is natural that it would be the judicial branch which would pass judgment on the issue of whether the Congress had passed a law and the President had signed a law that was in violation of the Constitution.
And having said that, I have no major disagreement that the States in our FEDERAL system ought to have some say in the matter, too. But it is not readily apparent how they might accomplish that task, at least individually.
You need to do the thinking. But you ought to do so clearly. Your muddy thinking just isn't working out.
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #67
[
Of the three branches in the national government, it is natural that it would be the judicial branch which would pass judgment on the issue of whether the Congress had passed a law and the President had signed a law that was in violation of the Constitution.
And having said that, I have no major disagreement that the States in our FEDERAL system ought to have some say in the matter, too. But it is not readily apparent how they might accomplish that task, at least individually.
You need to do the thinking. But you ought to do so clearly. Your muddy thinking just isn't working out.
Not apparent??? uranidiot. The state legislatures merely have to take a vote and say this federal law is unconstitutional and will not apply in our state. Where is the mystery?
The Supreme Court has no authority to declare any law unconstitutional. The Court attempted to give itself that power in the Case Marbury vs Madison.
The authority for this type of judicial review must be granted by the we the people. We have never done so. The Constitution gives the Court no such authority. Look it up.
twas not invented with Marbury. Existed before. It was cemented with Marbury
Lying through omission? You rascal
[
Of the three branches in the national government, it is natural that it would be the judicial branch which would pass judgment on the issue of whether the Congress had passed a law and the President had signed a law that was in violation of the Constitution.
And having said that, I have no major disagreement that the States in our FEDERAL system ought to have some say in the matter, too. But it is not readily apparent how they might accomplish that task, at least individually.
You need to do the thinking. But you ought to do so clearly. Your muddy thinking just isn't working out.
Not apparent??? uranidiot. The state legislatures merely have to take a vote and say this federal law is unconstitutional and will not apply in our state. Where is the mystery?
You might want to consider reading (or having somebody explain to you) the Supremacy Clause and what it means.
You remain quite a dull point.
- Aug 10, 2009
- 168,037
- 16,519
- 2,165
- Banned
- #70
The far right reactionary democratic Jacksonians yelling about judicial power are hilarious.
The supremacy clause is in reference conflict that exists between State law and Federal Law where there is an apparent conflict of interest and both parties have standing.
There are many State issues where the Federal Government does not have legal standing (e.g. age of consent) and Federal law does not apply. If it is an obvious Federal issue (e.g. interstate commerce or tariffs) Federal Law will generally be supreme.
I will also state again...the concept of Judicial Review and the voiding of existing law is not a power the Court has under the Constitution. I wrote several letters to a friend of mine who is a law professor and a Federal Attorney with the dept of Justice. He has tried cases before the Supreme Court. He agrees Judicial Review is not a Constitutionally vested power. Those of you who state otherwise are in error. This is a letter I sent to him. He did not dispute a single point I made.
Hi Craig,
I would like to expand and clarify several points I made in my last letter. As you know, the concept of judicial review and potential nullification of existing law was initially established in the Marbury v Madison Supreme Court Case. The Chief Justice, John Marshall, made two primary points in support of the Courts decision.
First, he stated the Court had every right to reject laws “repugnant to the Constitution” and that if he ignored this responsibility it would subject the government to “legislative omnipotence.” Marshall stated he wanted to protect against this legislative tyranny.
Of course under Article III of the Constitution and the subsequent XI Amendment, the Judiciary has no legal authority to reject or nullify law. My assumption is the Chief Justice was aware of this, but he obviously wasn’t overly concerned about the Constitutional niceties as he made his decision. As most historians point out, the ruling was not intended to protect the People or uphold the Constitution, but instead to protect the turf of the Judiciary. In this regard, Marshall succeeded beyond his wildest dreams.
The more egregious portion of the statement above is “legislative omnipotence” and protecting against legislative tyranny. The phrasing is truly stunning. Think about it for a moment. Are not `We the People’ directly represented by the legislative branch? If so, then the argument Marshall puts forth is essentially advocating against the American People by judicial fiat. Perhaps the Chief Justice didn’t know Latin or didn’t understand the concept of E pluribus Unum or the idea of the people, by the people, and for the people. Are we not a representative government established by consent of the governed? Perhaps the Chief Justice thought he could save us from ourselves.
His second point was if existing law conflicted with Constitutional law, than the Court has the right to nullify the law perceived to be in conflict. Those laws he called “repugnant to the Constitution.” Marshall did not nullify law in Marbury v Madison, but subsequent Courts have taken the liberty of interpreting the ruling as allowing for judicial nullification by declaring law unconstitutional. Of course, the concept of judicial nullification does not appear anywhere in the Constitution.
In my opinion, it is perfectly appropriate for any Court to point out perceived inconsistencies in existing law with that of the Constitution in their ruling. The Courts obligation is to establish findings of fact, and then make an informed ruling based on those facts and applicable law. However, it is an enormous leap to then have the Court nullify existing law by declaring it unconstitutional.
As I said previously, under our Constitution the remedy for poor law is one of three things: Presidential veto, legislative modification or amendment of existing law, or have the people vote the bastards out that passed the poor law (e.g. The current election cycle is a marvelous example of this). The remedy for poor law is not---and never has been, judicial nullification by declaring law unconstitutional. That was not the intent of our Founders, nor does that remedy appear anywhere in the Constitution.
Craig, I’m sure you’ve noticed that almost every time the Congress passes a law that is the least bit controversial it almost immediately comes under Court challenge. It is then often down the tender mercies of a judge who is more often than not capricious, an ideologue of the left or right, or merely incompetent. Our Founders would not be amused. This is not how our government was designed to function. It puts the legislative and executive branches of government hostage to the judiciary, and it is unconstitutional.
In our brief conversation you referenced Brown v Board of Education, I think, as an example of a judicial decision that effected positive social change. Of course, as you know, the Brown ruling negated fifty-eight years of Jim Crow that was ushered in by the 1896 Plessy v Ferguson decision in which the Supreme Court established the `separate but equal doctrine’ that relegated generations of African Americans to 2nd class status in their own Country. The remedy the Supreme Court furnished didn’t correct “legislative tyranny,” but its own malfeasance. It is more than a little ironic.
Craig, to sum up, my intention in writing is to solicit your opinion and maybe give you a different perspective than can probably be had in a law school. I am obviously very concerned about judicial nullification and think it is doing enormous damage to our Republic. The fact the entire idea has no Constitutional support, or the support of our Founders makes it that much worse. In all humility, I know I am absolutely correct on my facts and logic. I also know that there probably isn’t a lawyer in America who would advocate for my position. After all, lawyers are ultimately representatives of the Court, not of the people. The power the Court wields through nullification is huge, and the powerful protect the powerful.
I recently had a conversation with a lieutenant in the Richmond Police Force about some of these ideas. I work with a lot of police officers in the ER where I am a clinician, and I’m friends with many of them. The lieutenant teaches a rudimentary course on Constitution law at the police academy. He immediately seized on the ideas I mentioned and quoted almost verbatim Article III of the Constitution and amendment XI Judicial Powers Construed. The light bulb definitely went off in his head.
The officer mentioned a recent case where a Richmond City judge declared a City noise ordinance unconstitutional. I didn’t read his decision but I assume it was under First Amendment grounds. In any case the police liked the ordinance because folks in the Projects would blast their car stereos at 3 am and a number of people ended up getting shot or assaulted. The intent of the ordinance was obviously public safety and it worked from the police perspective.
Anyway my police buddy talked with a city attorney and it sounds like the attorney will recommend to the City Council to ignore the Judge’s ruling as he has no authority under the Virginia Constitution or City Charter to nullify duly enacted law! I wish our President and Congress would do the same. It could be another revolution!
I sincerely hope the judge challenges the City Council if that is their decision. I would love this to get escalated up to a Virginia Appellate Court or the Virginia Supreme Court. Of course, I know there isn’t a Court anywhere that will give up its power and rule in favor of the City, no matter what the Constitution says. After all, the powerful protect the powerful, right? But maybe it can bring awareness to the public so they can understand the precise judicial powers construed under our Constitution.
Craig, the Judiciary plays a vital role in our Government as defined by our Constitution. We are supposed to be a nation of laws. The law in our Republic is established by the consent of the governed or by the Constitution----not by judicial fiat. The people never gave their consent to the Judiciary to nullify law by declaring it unconstitutional. The Constitution never gave the judiciary the authority to nullify law. The Founders never intended for the judiciary to nullify law passed by the legislative branch and signed into law by the Executive. By all accounts it is deeply offensive, unconstitutional, and damaging to the Republic.
Again, I don’t expect you to agree with me, but you have to admit it is something to think about. 
Best Regards,
There are many State issues where the Federal Government does not have legal standing (e.g. age of consent) and Federal law does not apply. If it is an obvious Federal issue (e.g. interstate commerce or tariffs) Federal Law will generally be supreme.
I will also state again...the concept of Judicial Review and the voiding of existing law is not a power the Court has under the Constitution. I wrote several letters to a friend of mine who is a law professor and a Federal Attorney with the dept of Justice. He has tried cases before the Supreme Court. He agrees Judicial Review is not a Constitutionally vested power. Those of you who state otherwise are in error. This is a letter I sent to him. He did not dispute a single point I made.
Hi Craig,
I would like to expand and clarify several points I made in my last letter. As you know, the concept of judicial review and potential nullification of existing law was initially established in the Marbury v Madison Supreme Court Case. The Chief Justice, John Marshall, made two primary points in support of the Courts decision.
First, he stated the Court had every right to reject laws “repugnant to the Constitution” and that if he ignored this responsibility it would subject the government to “legislative omnipotence.” Marshall stated he wanted to protect against this legislative tyranny.
Of course under Article III of the Constitution and the subsequent XI Amendment, the Judiciary has no legal authority to reject or nullify law. My assumption is the Chief Justice was aware of this, but he obviously wasn’t overly concerned about the Constitutional niceties as he made his decision. As most historians point out, the ruling was not intended to protect the People or uphold the Constitution, but instead to protect the turf of the Judiciary. In this regard, Marshall succeeded beyond his wildest dreams.
The more egregious portion of the statement above is “legislative omnipotence” and protecting against legislative tyranny. The phrasing is truly stunning. Think about it for a moment. Are not `We the People’ directly represented by the legislative branch? If so, then the argument Marshall puts forth is essentially advocating against the American People by judicial fiat. Perhaps the Chief Justice didn’t know Latin or didn’t understand the concept of E pluribus Unum or the idea of the people, by the people, and for the people. Are we not a representative government established by consent of the governed? Perhaps the Chief Justice thought he could save us from ourselves.
His second point was if existing law conflicted with Constitutional law, than the Court has the right to nullify the law perceived to be in conflict. Those laws he called “repugnant to the Constitution.” Marshall did not nullify law in Marbury v Madison, but subsequent Courts have taken the liberty of interpreting the ruling as allowing for judicial nullification by declaring law unconstitutional. Of course, the concept of judicial nullification does not appear anywhere in the Constitution.
In my opinion, it is perfectly appropriate for any Court to point out perceived inconsistencies in existing law with that of the Constitution in their ruling. The Courts obligation is to establish findings of fact, and then make an informed ruling based on those facts and applicable law. However, it is an enormous leap to then have the Court nullify existing law by declaring it unconstitutional.
As I said previously, under our Constitution the remedy for poor law is one of three things: Presidential veto, legislative modification or amendment of existing law, or have the people vote the bastards out that passed the poor law (e.g. The current election cycle is a marvelous example of this). The remedy for poor law is not---and never has been, judicial nullification by declaring law unconstitutional. That was not the intent of our Founders, nor does that remedy appear anywhere in the Constitution.
Craig, I’m sure you’ve noticed that almost every time the Congress passes a law that is the least bit controversial it almost immediately comes under Court challenge. It is then often down the tender mercies of a judge who is more often than not capricious, an ideologue of the left or right, or merely incompetent. Our Founders would not be amused. This is not how our government was designed to function. It puts the legislative and executive branches of government hostage to the judiciary, and it is unconstitutional.
In our brief conversation you referenced Brown v Board of Education, I think, as an example of a judicial decision that effected positive social change. Of course, as you know, the Brown ruling negated fifty-eight years of Jim Crow that was ushered in by the 1896 Plessy v Ferguson decision in which the Supreme Court established the `separate but equal doctrine’ that relegated generations of African Americans to 2nd class status in their own Country. The remedy the Supreme Court furnished didn’t correct “legislative tyranny,” but its own malfeasance. It is more than a little ironic.
Craig, to sum up, my intention in writing is to solicit your opinion and maybe give you a different perspective than can probably be had in a law school. I am obviously very concerned about judicial nullification and think it is doing enormous damage to our Republic. The fact the entire idea has no Constitutional support, or the support of our Founders makes it that much worse. In all humility, I know I am absolutely correct on my facts and logic. I also know that there probably isn’t a lawyer in America who would advocate for my position. After all, lawyers are ultimately representatives of the Court, not of the people. The power the Court wields through nullification is huge, and the powerful protect the powerful.
I recently had a conversation with a lieutenant in the Richmond Police Force about some of these ideas. I work with a lot of police officers in the ER where I am a clinician, and I’m friends with many of them. The lieutenant teaches a rudimentary course on Constitution law at the police academy. He immediately seized on the ideas I mentioned and quoted almost verbatim Article III of the Constitution and amendment XI Judicial Powers Construed. The light bulb definitely went off in his head.
The officer mentioned a recent case where a Richmond City judge declared a City noise ordinance unconstitutional. I didn’t read his decision but I assume it was under First Amendment grounds. In any case the police liked the ordinance because folks in the Projects would blast their car stereos at 3 am and a number of people ended up getting shot or assaulted. The intent of the ordinance was obviously public safety and it worked from the police perspective.
Anyway my police buddy talked with a city attorney and it sounds like the attorney will recommend to the City Council to ignore the Judge’s ruling as he has no authority under the Virginia Constitution or City Charter to nullify duly enacted law! I wish our President and Congress would do the same. It could be another revolution!
I sincerely hope the judge challenges the City Council if that is their decision. I would love this to get escalated up to a Virginia Appellate Court or the Virginia Supreme Court. Of course, I know there isn’t a Court anywhere that will give up its power and rule in favor of the City, no matter what the Constitution says. After all, the powerful protect the powerful, right? But maybe it can bring awareness to the public so they can understand the precise judicial powers construed under our Constitution.
Craig, the Judiciary plays a vital role in our Government as defined by our Constitution. We are supposed to be a nation of laws. The law in our Republic is established by the consent of the governed or by the Constitution----not by judicial fiat. The people never gave their consent to the Judiciary to nullify law by declaring it unconstitutional. The Constitution never gave the judiciary the authority to nullify law. The Founders never intended for the judiciary to nullify law passed by the legislative branch and signed into law by the Executive. By all accounts it is deeply offensive, unconstitutional, and damaging to the Republic.
Again, I don’t expect you to agree with me, but you have to admit it is something to think about. 
Best Regards,
Last edited:
Where the Federal Government has passed a law on a given issue, no State law may be in conflict with that Federal Law provided that the law itself is Constitutionally in keeping with the limited powers and authority of the Federal government.
Thus, for example, when the Federal Government passed the Federal Wiretap law, the State laws on wiretapping must (minimally) comply. They can grant additional protections, but they may not authorize wiretap laws that provide lesser protections.
That is what is generally meant by Supremacy.
Thus, for example, when the Federal Government passed the Federal Wiretap law, the State laws on wiretapping must (minimally) comply. They can grant additional protections, but they may not authorize wiretap laws that provide lesser protections.
That is what is generally meant by Supremacy.
The far right reactionary democratic Jacksonians yelling about judicial power are hilarious.
every comment you make is hilarious, and I don't mean anyone is laughing with you but at you.
- Aug 10, 2009
- 168,037
- 16,519
- 2,165
- Banned
- #74
The far right reactionary democratic Jacksonians yelling about judicial power are hilarious.
every comment you make is hilarious, and I don't mean anyone is laughing with you but at you.
The mainstream of us actually do understand the Constitution, we who greatly outnumber you guys, are laughing at you.
Oh, look! There is an informant behind you: boo!
The far right reactionary democratic Jacksonians yelling about judicial power are hilarious.
every comment you make is hilarious, and I don't mean anyone is laughing with you but at you.
The mainstream of us actually do understand the Constitution, we who greatly outnumber you guys, are laughing at you.
Oh, look! There is an informant behind you: boo!
There is no mainstream of us when it comes to you, you're so far left you make pelosie look conservative.
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #76
twas not invented with Marbury. Existed before. It was cemented with Marbury
:
uraliar. It was invented with marbury. Before that it was taken for granted that courts cannot repeal laws. That is a legislative function.
- Aug 10, 2009
- 168,037
- 16,519
- 2,165
- Banned
- #77
every comment you make is hilarious, and I don't mean anyone is laughing with you but at you.
The mainstream of us actually do understand the Constitution, we who greatly outnumber you guys, are laughing at you.
Oh, look! There is an informant behind you: boo!
There is no mainstream of us when it comes to you, you're so far left you make pelosie look conservative.
SCOTUS is right, you are wrong, but you can write SCOTUS if you want.
ShootSpeeders
Gold Member
- May 13, 2012
- 20,232
- 2,363
- 280
- Thread starter
- Banned
- #78
In my opinion, it is perfectly appropriate for any Court to point out perceived inconsistencies in existing law with that of the Constitution in their ruling. The Courts obligation is to establish findings of fact, and then make an informed ruling based on those facts and applicable law. However, it is an enormous leap to then have the Court nullify existing law by declaring it unconstitutional.
]
That's what everyone with more than 2 brain cells says. The courts have every right to say a law is unconstitutional and encourage congress to repeal it. But they can't repeal it themselves!. That is a legislative function and the first words of the constitution after the preamble say "all legislative powers herein granted shall be vested in a congress of the united states".
ShackledNation
Libertarian
Marbury v. Madison - Wikipedia, the free encyclopediaThe very first words of the constitution after the preamble are
All legislative powers herein granted shall be vested in a congress of the united states
Writing laws and repealing laws are legislative powers and yet federal judges are constantly declaring laws unconstitutional and repealing them and sometimes even writing a new law in its place!
Article 3 Section 1&2:
"Section 1.
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 behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
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;
Article III | LII / Legal Information Institute
^that looks like an answer, but it isn't.
We all know already that the Constitution explicitly grants the power it provides to the judicial branch.
But the question was essentially what provision in the Constitution explicitly grants the judicial branch the power to vacate any laws.
The honest answer to that question is that there is NO explicit grant of ANY such authority.
To the extent it exists at all, it exists as an inherent or implied power.
The Constitution DOES provide that laws passed in compliance with the Constitution are the supreme laws of the land. That is, Constitutionally valid Federal laws trump any State laws.-- United States Constitution, Article VI, Clause 2This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The implication lingers that a law passed in violation of the Constitution is not only not superior to any State law on the topic, it is in fact no "law" at all.
Who would say so? Naturally, it would be the judicial branch.
It is an answer, and one that is exactly rights. The Supreme Court is vested with "judicial power." Is that explicitly defined anywhere? No. So does that mean the courts have no power? Of course not. To get an idea of what that term means, let us look at the Constitutional Convention.
"At the Constitutional Convention in 1787, there were a number of references to judicial review. Fifteen delegates made statements about the power of the federal courts to review the constitutionality of laws, with all but two of them supporting the idea.[14]
Likewise, at the state ratifying conventions, over two dozen delegates in at least seven states indicated that under the Constitution, the federal courts would have the power to declare statutes unconstitutional.[15] Professors Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[16]
The concept of judicial review was discussed in the Federalist Papers. Alexander Hamilton asserted in Federalist No. 78 that under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes:
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[17]
The opponents to ratification, known as Anti-federalists, agreed that the federal courts would have the power to declare statutes unconstitutional, but were concerned that this would give the federal courts too much power. Robert Yates argued: "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."[18]"
So the proponents and the opponents of the Constitution both agreed that judicial review is a power granted to federal courts. In fact, this power is one reason why some opposed ratification in the first place.
Marbury v. Madison - Wikipedia, the free encyclopediaArticle 3 Section 1&2:
"Section 1.
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 behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
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;
Article III | LII / Legal Information Institute
^that looks like an answer, but it isn't.
We all know already that the Constitution explicitly grants the power it provides to the judicial branch.
But the question was essentially what provision in the Constitution explicitly grants the judicial branch the power to vacate any laws.
The honest answer to that question is that there is NO explicit grant of ANY such authority.
To the extent it exists at all, it exists as an inherent or implied power.
The Constitution DOES provide that laws passed in compliance with the Constitution are the supreme laws of the land. That is, Constitutionally valid Federal laws trump any State laws.-- United States Constitution, Article VI, Clause 2This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The implication lingers that a law passed in violation of the Constitution is not only not superior to any State law on the topic, it is in fact no "law" at all.
Who would say so? Naturally, it would be the judicial branch.
It is an answer, and one that is exactly rights. The Supreme Court is vested with "judicial power." Is that explicitly defined anywhere? No. So does that mean the courts have no power? Of course not. To get an idea of what that term means, let us look at the Constitutional Convention.
"At the Constitutional Convention in 1787, there were a number of references to judicial review. Fifteen delegates made statements about the power of the federal courts to review the constitutionality of laws, with all but two of them supporting the idea.[14]
Likewise, at the state ratifying conventions, over two dozen delegates in at least seven states indicated that under the Constitution, the federal courts would have the power to declare statutes unconstitutional.[15] Professors Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[16]
The concept of judicial review was discussed in the Federalist Papers. Alexander Hamilton asserted in Federalist No. 78 that under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes:
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[17]
The opponents to ratification, known as Anti-federalists, agreed that the federal courts would have the power to declare statutes unconstitutional, but were concerned that this would give the federal courts too much power. Robert Yates argued: "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."[18]"
So the proponents and the opponents of the Constitution both agreed that judicial review is a power granted to federal courts. In fact, this power is one reason why some opposed ratification in the first place.
I like this and think it is basically accurate, however, as you say, there was by no means complete agreement for Judicial Review. The bottom line, the Constitution does not support it with the existing language.
I would prefer the American people debate the issue, and if there is consensus, amend the Constitution to reflect the Judicial Review power of the Court. Otherwise, you leave the door open for the Legislator or President to ignore the Court's declaration of Unconstitutional as has been done in the past under Andrew Jackson.
Similar threads
- Replies
- 40
- Views
- 815
- Replies
- 5
- Views
- 120
- Replies
- 164
- Views
- 2K
Latest Discussions
- Replies
- 77
- Views
- 372
- Replies
- 31
- Views
- 319
- Replies
- 221
- Views
- 1K
Forum List
-
-
-
-
-
Political Satire 8034
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
ObamaCare 781
-
-
-
-
-
-
-
-
-
-
-
Member Usernotes 468
-
-
-
-
-
-
-
-
-
-