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Riddle me this: Unconstitutional Laws and Judicial Review

Prof.Lunaphiles

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AOC_unconstitutional.png


She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?
 
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TNHarley

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There are laws that are supposed to prevent lawmakers for speaking publicly about policies that go against the constitution.
What are they going to do? Throw every fuckin one of em in jail?
Thats what should happen but this is America. The land of liberty and justice for government.
 

xband

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View attachment 510003

She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?
Prescience using one word.
 

Winston

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View attachment 510003

She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?
It is not in the Constitution, it is found here.

 

C_Clayton_Jones

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View attachment 510003

She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?
It is not in the Constitution, it is found here.

Actually, that is the Constitution.

It’s also found here in the Constitution:

“This 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.”
 
OP
Prof.Lunaphiles

Prof.Lunaphiles

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Marbury v. Madison remains the single most important decision in American constitutional law.[1] It established American judges' authority to review the constitutionality of Congress's legislative acts,[1] and to this day the Supreme Court's power to review the constitutionality of American laws at both the federal and state level "is generally rested upon the epic decision of Marbury v. Madison."[61]

Obviously, the ruling was a crafty way for the Supreme Court, under Chief Marshall's direction, to shore up the inadequate Constitution and the inaugural organization of the judiciary.

Criticisms of Marshall's opinion in Marbury usually fall into two general categories.[54] First, some criticize the way Marshall "strove" to reach the conclusion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government. Today, American courts generally follow the principle of "constitutional avoidance": if a certain interpretation of a law raises constitutional problems, they prefer to use alternative interpretations that avoid these problems, so long as the alternative interpretations are still plausible.[56] In Marbury, Marshall could have avoided the constitutional questions through different legal rulings: for example, if he had ruled that Marbury did not have a right to his commission until it was delivered, or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues.[57] Marshall did not do so and many legal scholars have criticized him for it.[56] Some scholars have responded that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an "ironclad rule".[58] Alternatively, it has also been argued that the claim that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on England's Court of King's Bench, which inherently possessed mandamus powers.[59]

Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.[60] It is generally agreed that Marshall's series of assertions regarding the U.S. Constitution and the actions of the other branches of government do not "inexorably lead to the conclusion that Marshall draws from them."[60] Marshall's assertion of the American judiciary's authority to review executive branch actions was the most controversial issue when Marbury was first decided, and several subsequent U.S. presidents have tried to dispute it, to varying degrees.[60]
 

Skylar

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View attachment 510003

She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?

That would be the Judicial power, which is outlined in extravagant detail in Federalist 78.
 

OKTexas

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View attachment 510003

She is right - something is amiss in the assignment of checks on power.


Where is it in the almighty United States Constitution that gives the Supreme Court the power to annul a congressional act?


Article 3.

.
 

woodwork201

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There are laws that are supposed to prevent lawmakers for speaking publicly about policies that go against the constitution.
What are they going to do? Throw every fuckin one of em in jail?
Thats what should happen but this is America. The land of liberty and justice for government.
Which laws are those that limit speech by Congress? And which Congress passed them? And, not that any such law exists, would you consider such laws to be constitutional?
 

woodwork201

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Marbury v. Madison remains the single most important decision in American constitutional law.[1] It established American judges' authority to review the constitutionality of Congress's legislative acts,[1] and to this day the Supreme Court's power to review the constitutionality of American laws at both the federal and state level "is generally rested upon the epic decision of Marbury v. Madison."[61]


Obviously, the ruling was a crafty way for the Supreme Court, under Chief Marshall's direction, to shore up the inadequate Constitution and the inaugural organization of the judiciary.

Marbury did not give the Court the authority to review any law. Marshall's assertion was that the Court could, and must, consider the constitutionality of the law in the case it was hearing - and that is true for the very reasons Marshall argued: if the law is in conflict with the Constitution then it is not a law and therefore has no standing before the Court. In fact, this is why the Court did not order Jefferson or Madison to deliver Marbury's commission; the law was not constitutional and was, therefore, no law at all, so there was no standing to order the delivery of the commission.

Marbury v Madison said:
136

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
137

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
138

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
139

This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
140

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
141

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
142

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
143

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
144

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

Where the Court went wrong was in deciding that it would only take cases where constitutional questions were involved, abdicating their explicit role of being the highest court of appeal. Sometimes it is just proper for the Supreme Court to overturn a ruling just because it was wrong based on the evidence or good sense. They no longer do that. But then, there are more than enough constitutional questions to consume all of their time.

Edit: I forgot to mention. Search Marbury and you won't find the word "review" anywhere in it.

 
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Natural Citizen

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The doctrine of judicial review doesn't exist in Article III.

The court gave themselves the power in the previous case referenced.

Technically speaking, it's illigitimate.

And if some nitwit wants to bring up the Commerce Clause, I'd direct them to Federalist #22.
 
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RetiredGySgt

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The doctrine of judicial review doesn't exist in Article III.

The court gave themselves the power in the previous case referenced.

Technically speaking, it's illigitimate.

And if some nitwit wants to bring up the Commerce Clause, I'd direct them to Federalist #22.
Again article III clearly states that in all matters in regards to the US Government the supreme court IS the SOLE Court for final decision. ANY question about a law passed by congress thus flls to the supreme Court to adjudicate.
 

Natural Citizen

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Again article III clearly states that in all matters in regards to the US Government the supreme court IS the SOLE Court for final decision. ANY question about a law passed by congress thus flls to the supreme Court to adjudicate.

The only thing the Supreme Court is supreme over are the lower federal courts.

And congress clearly has the power to strip the federal courts of jurisdiction, if you read Article III thoroughly.

The judicial branch was by the founders' design the weakest branch of government.

Anyway. It's late. I'll shoot the breeze with you about it tomorrow some time if you want.

I always like these kinds of conversations.
 

woodwork201

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The doctrine of judicial review doesn't exist in Article III.

The court gave themselves the power in the previous case referenced.

Technically speaking, it's illigitimate.

And if some nitwit wants to bring up the Commerce Clause, I'd direct them to Federalist #22.
I disagree that the power is illegitimate. I just quoted Marbury where Marshall simply states that they have to consider the constitutionality of any law in the cases before them. If the law is not constitutional then it can't be enforced in the case before them. Marshall's intent was legitimate. Subsequent courts have quit considering the Constitution at all in many of their decisions, choosing what they believe

They technically do not make law and they technically do not throw out unconstitutional laws. They rule in regards to the case before them. Their words set precedent in that any judge or lawyer working a similar case would assume the same outcome so they rule based on that precedent but the Supreme Court order only ever applies to the single case before them... Until the Court got out of control and started making law and ordering generally rather than the case they're considering.
 

woodwork201

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Again article III clearly states that in all matters in regards to the US Government the supreme court IS the SOLE Court for final decision. ANY question about a law passed by congress thus flls to the supreme Court to adjudicate.
Can you quote that - especially the "ANY question" part?
 

RetiredGySgt

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Can you quote that - especially the "ANY question" part?

Section 2​





The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.





In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.





The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
specifically this

to Controversies to which the United States shall be a Party;
 

woodwork201

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That phrase clearly does not give the Courts authority over any law Congress passes. It gives them authority in the cases and controversies legally brought before the Court. If no one files a suit, or if the suit is meritless or the plaintiff has no standing, or if no harm was done or if a whole bunch of other planets don't line up, the Court has no jurisdiction at all.

You should spend some time studying that thing that you're sworn to defend.

 

justinacolmena

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Which laws are those that limit speech by Congress? And which Congress passed them? And, not that any such law exists, would you consider such laws to be constitutional?
Guns are banned in spite of the Second Amendment. Why would anyone think the First Amendment protects speech?
 

Rigby5

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Obviously, the ruling was a crafty way for the Supreme Court, under Chief Marshall's direction, to shore up the inadequate Constitution and the inaugural organization of the judiciary.

It is far more fundamental and explicit than that.

{...

Article III​

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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
...
...}

Clearly the whole point of the separation of powers between the legislative, executive, and judiciary is to create fundamental checks and balances.

The only way to prevent an arbitrary authoritarian legislature is for judicial review of any legislation.
The only problem is the judiciary no longer is doing its job.
All federal gun laws, the War on Drugs, 3 strikes, mandatory sentences, etc. are all obviously and totally illegal.
 

Rigby5

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That phrase clearly does not give the Courts authority over any law Congress passes. It gives them authority in the cases and controversies legally brought before the Court. If no one files a suit, or if the suit is meritless or the plaintiff has no standing, or if no harm was done or if a whole bunch of other planets don't line up, the Court has no jurisdiction at all.

You should spend some time studying that thing that you're sworn to defend.


While true, that does not change anything because there are plenty of victims challenging all laws.
There are lots of people imprisoned over the illegal war on drugs, federal firearm laws, etc., and the SCOTUS should have stepped in and prevented these illegal incarcerations.

The fact we still have these illegal laws means we have a corrupt judiciary.
The courts have illegally maintained the status quo ever since the infamous Dredd Scott decision.
 

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