Where does the constitution give federal judges the power to repeal laws?

Discussion in 'Judicial Interpretation' started by ShootSpeeders, Dec 21, 2013.

  1. SandSquid
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    SandSquid VIP Member

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    That was what Marbury v Madison determined, it was the founding fathers judges they voted in place who came to the conclusion otherwise. If the legislative branches create a law which the Supreme Court deems unconstitutional, it is up to the Legislative branches to make that law Constitutional for it to become law.

    That was where the Supreme Court was recognized as having the power to review all acts of Congress where constitutionality was at issue, and judge whether they abide by the Constitution, and deem them null if they are not Constitutional. And not one of those founding fathers moved for an amendment to take that power away.
     
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  2. WelfareQueen
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    WelfareQueen Platinum Member

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    Kindly show where in the Constitution the Courts can nullify Law. :)
     
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  3. SandSquid
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    SandSquid VIP Member

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    I believe article 3 says that the supreme Court has jurisdiction to both fact and law.

    And of course Washington and Adams nominees to the supreme Court, confirmed by a LOT of America's founding fathers took that stance, and over 200 years later... Not one challenge by Congress to legislate otherwise.

    "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"

    So the Constitution said judicial power will extend to laws of the US.
     
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  4. WelfareQueen
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    WelfareQueen Platinum Member

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    Yes it does. But the Constitution only gives authority to "Create, Amend, or Nullify" Law to the Congress. Neither the Courts nor the President can create, amend, or nullify law. Period. The President can veto a Law, but that does not nullify it. It sends the law back to Congress.

    The court gave itself that authority. Not we the people. And the Constitution says all power must ultimate derive from we the people.

    And btw....the Courts decision to nullify law has been challenged successfully. Look up Andrew Jackson. All Branches of Government have a co-equal responsibility to consider Constitutional questions. The problem is the Congress doesn't do its job. However, that does not give the Courts the authority to override the People's Branch of Government by nullifying Law.
     
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  5. SandSquid
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    SandSquid VIP Member

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    While you say only Congress has the ability to nullify the law, the Constitution says that in issues arising under the Constitution, the Supreme Court shall have judicial power extending to the Laws of the United States. I'll take the Constitution over your belief.

    This is that check and balance on Congress you speak of. Congress has the right to make laws, but the check and balance for example is that they can not make up a law that all right to freedom of speech is punishable by death. That would be unconstitutional and fall to the Supreme Court's Judicial Power over the Laws of the United States. If a President didn't use his check, then the SC could use theirs. Likewise if Congress felt that power was too much, their check is their ability to amend the Constitution. If you want to remove or change that Constitutional power, we would need an amendment to change that, not just "I don't like it so we will ignore it". What you are describing is not what the Constitution says and actually a step AWAY from the checks and balances.

    And yes, Andrew Jackson is a prime example of a President eroding the powers of the Constitution, saying "let them enforce it". Lincoln's suspension of Habeus Corpus would be another. That was not challenging the law itself, but that the President could do as he wishes as long as no one removed him from power. You say, a President can't ignore a law. In this case that happened, and "let them enforce it" was his response.

    Back with the founding fathers judges on the bench the question came up. Should the Constitution be the supreme law of the land, or a legislative law. They decided the Constitution was that supreme Law, and therefore no legislation could take away the power of the Constitution except through an amendment. If your township decides to legalize child slavery, that's not the end of it. The Constitution says that slavery is illegal, and therefore that is what matters. If your state removes the right to bear arms, the Supreme Court steps in and says the 2nd amendment is the Supreme Law.
     
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  6. emilynghiem
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    emilynghiem Constitutionalist / Universalist Supporting Member

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    Dear SandSquid and WelfareQueen
    I agree with both of you.
    It is still up to Congress or State Legislatures to pass LEGISLATION
    to change laws.

    When courts strike something down as unconstitutional, that's like midprocess.
    That's agreeing it isn't constitutional to enforce, but it hasn't been formally replaced, reformed or amended yet.
    In the MEANTIME the old law struck down is being ruled "unenforceable."

    So that's why people interpret "unenforceable" with "legalizing" something
    but technically that requires a different legislative step.

    This is the complaint I have is with people taking the rulings on
    Roe V Wade
    Obergefell or any other similar ruling cited
    where BANS were "struck down as unconstitutional" to enforce
    but that's NOT LITERALLY THE SAME AS MAKING ANYTHING LEGAL.


    As Kim Davis rightfully argued: only the State legislatures can go back
    and rewrite their laws to be constitutional, and that doesn't have to mean
    endorsing right to marriage or making same sex marriage legal.

    There was at least one state that didn't BAN same sex marriage
    but didn't ENDORSE it either. Again, a mid-process stage where
    it isn't decided or confirmed in writing yet what the laws are going to state.

    SandSquid and WelfareQueen you are both right
    * The Judiciary can rule on facts and law in striking something down
    as unconstitutional or upholding that as constitutional
    * This is NOT the same as the Legislative role of literally WRITING AND PASSING
    the laws or reforms that are going to replace or refine the problems
    or conflicts causing laws not to be constitutionally enforceable
    * And it is STILL up to the AUTHORITY OF PEOPLE to check BOTH the
    judicial and legislative branches to ensure these really reflect, respect
    and represent the CONSENT of the public affected by those laws and rulings.

    Even if the Judiciary sticks to its given limits on authority, it STILL should never
    act outside the bounds of govt and start "establishing or prohibiting" BELIEFS.

    So even if we all agree on the differences and limits on the Judiciary separating
    it from the Legislative, there REMAINS the issue of Judges not rejecting issues
    involves BELIEFS that should be kicked back to PEOPLE AND STATES and NOT
    be up to Govt authority to decide such "disputes about BELIEFS" FOR the people.
    The Judges should discern what issues would constitute Govt "establishing or
    prohibiting" or imposing/discriminating on the basis of belief or creed, and refuse
    to rule on those, thus forcing this decision back on the people to work out for themselves
    instead of relying on Govt to establish which belief should dominate which is in itself unconstitutional.
     
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  7. Flopper
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    Flopper Gold Member Gold Supporting Member Supporting Member

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    The Supreme Court's responsibility to interpret the constitution is the basis to the idea that the court is changing the constitution. If their interpretation of the constitution is consider wrong by the people, the solution is obvious. Change the constitution to clarify it.
     
  8. Flopper
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    Flopper Gold Member Gold Supporting Member Supporting Member

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    Judicial review is not an explicit power given to the courts in the constitution, but it is an implied power. The Supreme Court made a ruling in the Marbury v. Madison that clearly stated the Court's power of judicial review.

    The basis of the ruling was the supremacy of the constitution above all law, Article 3 of Constitution which established the Supreme Court as the superior court. If the supreme court is to be denied judicial review then who will perform that function? Certainly not the congress that passed the law, not if the concept of checks and balances are to be maintained. Regardless, if would require a constitution amendment which is about as likely as the sun not rising tomorrow.
     
  9. WelfareQueen
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    The primary author of the Constitution and the sole author of the Bill of Rights, James Madison, never considered nullification of Law by the Courts to be Constitutional nor did he agree if was an implied power. After Marbury versus Madison Both Jefferson and Madison warned against Judicial Tyranny.


    Key Jefferson quotes:


    Jefferson plainly had an answer against judicial tyranny.

    This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … . The ultimate arbiter is the people …. —


    He said judicial tyranny made the Constitution “a thing of wax.”

    If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law … — Letter to Judge Spencer Roane, Nov. 1819

    Jefferson was plainly alarmed by the possibility of judicial tyranny.



    You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. ….

    Thomas Jefferson on Judicial Tyranny | | Tenth Amendment Center


     
  10. Flopper
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    Flopper Gold Member Gold Supporting Member Supporting Member

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    If the court does not do judicial review, who does? Jefferson mentions the people being the final arbitrator. Exactly how would that be done today?
     

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