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It is an answer, and one that is exactly rights. The Supreme Court is vested with "judicial power." .
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It is an answer, and one that is exactly rights. The Supreme Court is vested with "judicial power." .
Judicial power does not include the power to write and repeal laws. Those are clearly legislative functions though we let our courts do both all the time and that must end.
Fuck dem judges brah. Checks n balances are for pussies.
Hey stinky-butt. Who acts as a check on our unelected Supreme Court?
No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.Marbury v. Madison - Wikipedia, the free encyclopedia^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 2
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.
Judges cannot write laws, but that is not what they are doing. Judicial power includes the right to interpret the Constitution and repeal unconstitutional laws. That is the primary purpose of a Supreme Court. The ratifiers of the Constitution agreed that this power existed, and those who opposed ratification also agreed such a power existed. In fact, the existence of such a power was once reason they refused to ratify the Constitution.[
It is an answer, and one that is exactly rights. The Supreme Court is vested with "judicial power." .
Judicial power does not include the power to write and repeal laws. Those are clearly legislative functions though we let our courts do both all the time and that must end.
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 wasnt 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 didnt know Latin or didnt 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, Im sure youve 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 didnt 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 isnt 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 Im 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 didnt 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 Judges 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 isnt 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 dont expect you to agree with me, but you have to admit it is something to think about. 
Best Regards,
No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.Marbury v. Madison - Wikipedia, the free encyclopedia
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.
Armchair constitutional scholars amuse me with their ignorance and selective (lack of) knowledge.
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 wasnt 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 didnt know Latin or didnt 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, Im sure youve 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 didnt 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 isnt 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 Im 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 didnt 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 Judges 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 isnt 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 dont expect you to agree with me, but you have to admit it is something to think about. 
Best Regards,
The concept of judicial review and potential nullification of existing law was NOT a new idea. It was not yet established as a SCOTUS privilege, but neither was it established that the SCOTUS did not have those powers. It was an open question that was resolved with Marbury.
Marshall struggled to protect the Judiciary as Washington struggled to protect the Executive and as the Senators and Representatives struggled to protect the Congress.
Institutionalists. They cared and care more about our system than any trollish tool like you do. You would destroy what you seek to defend. Whether through ignorance or conscious thought the result would be the same. You are an enemy within
No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.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.
If it is not in writing it is not an enumerated power.
No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.
If it is not in writing it is not an enumerated power.
Enumerated powers concerns the Congress
It is in writing. Judicial power was defined at the framing to include judicial review. Both proponents and opponents of judicial review acknowledged that it existed in the Constitution.No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.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.
If it is not in writing it is not an enumerated power.
It is in writing. Judicial power was defined at the framing to include judicial review. Both proponents and opponents of judicial review acknowledged that it existed in the Constitution.No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it. The debate was not over whether judicial review was granted by the Constitution--the debate was over whether a Constitution with such a power should be passed. The anti-federalists said no, but they lost. The Constitution passed, judicial review and all.
If it is not in writing it is not an enumerated power.
[
Judicial power does not include the power to write and repeal laws. Those are clearly legislative functions though we let our courts do both all the time and that must end.
No one ever said it does.
.
It is in writing. Judicial power includes judicial review. That was the definition of judicial power at the time of the framing, and that is the definition of judicial power today. What about that is so difficult to understand? What do you think judicial power means, and on what basis?It is in writing. Judicial power was defined at the framing to include judicial review. Both proponents and opponents of judicial review acknowledged that it existed in the Constitution.If it is not in writing it is not an enumerated power.
Then why isn't it in writing in the Constitution? The issue was debated...there was no consensus.
If it is not in the Constitution it does not exist. The fact the idea was debated is irrelevant.
[No, that is false. When the Constitution was ratified the existence of judicial review in the Constitution was accepted by both those who opposed it and those who supported it.
[Judges cannot write laws, but that is not what they are doing. .
