Marburg V. Madison exposed a flaw. One that needed to be addressed. There was no Judicial Review. You are correct. But... Here is the rub, one was needed. There had to be a final say on issues of law. Congress should have passed an Amendment laying the process out, but they let the Court assume the mantle. By not acting, they endorsed the action. Inaction is a choice. Doing nothing, is action.
There had to be a point where someone decided what the law meant, or how the Constitution would be applied. I’ve often pointed out that the First Amendment for example, does not say. “The Supreme Court shall upon review, find that any laws passed by Congress, and Signed by the President, or approved by a 2/3rd majority of the Congress, shall not abridge Freedom of Speech.” Etc.
It says Congress shall pass no laws. But it doesn’t have a remedy. Like the Ten Commandments, the penalty is apparently left up to God. The Fourth Amendment says that we shall be secure in our person and papers free from Unreasonable Search. Ok. What is unreasonable? Again, no one is listed as to decide what is, and is not unreasonable If it was simply left to the judge hearing the case, then what? If you get a right wing Judge, an Unreasonable Search might never exist. If you get a left wing judge, no search is ever reasonable. And those individual rulings would stand, unchallengeable. There being no where to take the question for an answer for a standardized opinion applicable for all.
So a point where the final binding answer would be found was needed. A point where the Constituional prohibition against Congress passing a law prohibiting would be enforced. Do I agree with all their decisions? No. But I voted for Gore, and shouted Coward at the computer when Bush signed the Campaign Finance Reform law. Why?
Bush signed it and said he believed it was Unconstitutional. If he honestly believed it. He should not have passed the buck to the Supreme Court. But he did. I don’t have to agree with your stated beliefs, but I can admire someone who stands by those I don’t agree with. I did not agree with Alan Colmes on many issues. But I respected him tremendously. I respected him because he was consistent in his views no matter if it was the left or right doing the dumb and previously disapproved thing. He did not castigate the Right for doing things while giving the left a pass. I respected that.
Like the Ten Commandments, the Bill of Rights was intended to be a guide, a general principle we could all agree upon. The problem is, we all define those things differently. Many people believe that there is no such thing as cruel and unusual. Any punishment the baddie gets is not only warranted, but totally acceptable. The Rack is too good for them.
On the other hand, there are those who think any incarceration is cruel and unusual. Would you like that decision made on a case by case basis with only the whim of the Judge as the deciding factor? I mean, you could go into court for a traffic ticket and be sentenced to hard labor for months or years, because the Judge didn’t get any the night before, and no where could you appeal that ruling as inappropriate to the crime.
One was not provided, and one was desperately needed. Congress accepted it when they did not legislate a fix.
"There had to be a point where someone decided what the law meant, or how the Constitution would be applied."
Applied???
The Constitution is written in English.
The intention was for a Supreme Court to show how the languge of the Constitution either allowed a law, or did not.
If not....the Supreme Court has no business adjudicating....and the state courts had that right. That's federalism.
"...decision made on a case by case basis with only the whim of the Judge as the deciding factor?"
That's the situation we have currently.
Elected executives should simply overrule any Supreme Court decision not consistent with the will of the people:
Where does the Constitution state that the Supreme Court decision must be the final word?????
“Jefferson: to “consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”
Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”
Lincoln: “
f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Franklin Roosevelt: Proposed speech stating that if the Supreme Court should invalidate a certain New Deal measure, he would not “stand idly by and... permit the decision of the Supreme Court to be carried through to its logical inescapable conclusion.” Quoted in Kathleen M. Sullivan et al., “Constitutional Law,” pg. 20– 24 (15 ed., 2004).
It is well past time to rein in this loose cannon.
Again, yes, it was sort of needed. Let’s take an easy one. Miranda. Prior to Miranda, we had the right to remain silent. Since Miranda, not so much, but we can get to that in a moment. Miranda created a right. That right that was created, was the duty of police, when questioning someone, to inform that person that they did in fact have the rights to an attorney, and to remain silent. Yes, we had that right before, but given the quality of education through history, people either may not know about it, or refuse to allow it.
Even today, those rights are denied people. The right to remain silent, or to stop answering questions at any time. Now, that right is proof of your guilt.
SCOTUS ruling: Silence can be evidence as guilt
I disagree with that. It could also be that the decision to stop answering questions is the realization that the police are trying to make it look like you are guilty. The the right to an attorney has also been shat upon. The Supreme Court deciding that the defendant asking for a “Lawyer Dog.” Was not the use of the word Dog as man, dude, pal, buddy or whatever. But instead the literal request of a canine who was admitted to the BAR.
Those cases should have been decided the other way. But as Miranda established a new right, most cases erode your existing rights. The exceptions to the rights, the unreasonable search and seizure definition.
Without that adjudication ability however, then what those terms mean differs from court to court, judge to judge, and person to person. Imagine the state of American Police without clear examples of what is allowed, and what is not. In one case, the police can conduct a search for a weapon and find something else, and have the evidence admitted, in the next case, nearly identical, the search would be thrown out.
In one case the trial Judge decides that because the police told you that you could not leave you were merely detained while they asked questions for a report. You were not under arrest, so you were not entitled to the rights including to remain silent. In the next court room over, the police essentially placed you under arrest when the blue lights came on to stop you for failure to signal a lane change. The first words out of the officers mouth should have been to inform the defendant that he was under arrest. In the very next court room, a case is thrown out because the police arrested a man for a crime, but he was not indicted for that crime by a Grand Jury before hand.
So to adjudicate those cases you have to create rights in the effort to protect the existing rights. Where do property rights end? Do I have a right to burn toxic chemicals on my property? Does the government have the right to tell me not to do it? Without those rights established, or yet another exception, I wouldn’t know, and neither would you.
As for me, I believe the exceptions to the clearly stated rights should be few, and extreme. The right to freedom of speech should trump everything except perhaps immediate public danger, the classic yelling fire in the theater scenario. Cruel and Unusual should trump everything including the stupid assed ticking time bomb scenario.
The silence as an admission of guilt should never have been allowed. Otherwise the police could just stand there shouting various crimes at you, and your inability to answer them all would be an admission of guilt. Then again, I believe that a lot of things that are allowed as exceptions, should never have been.
