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

[WelfareQueen]

SCOTUS, 200 years of case and constitutional law, and Idadunno all effectively refute you, WelfareQueen, well and effectively.

So your saying the Court gave itself the power to nullify law. We agree. That power is not Constitutional. Never has been.

 

[Idadunno]

[. A Supreme Court decision can only be changed if two-thirds of the Senate and the House of Reps vote on it or if three fourths of the states ratify it. Article V of the Constitution
The Constitution

You're saying a SC decision can only be overturned by the amending process??? Nowhere does the constitution say that.

Fact is, according to the tenth amendment, every state has authority to nullify an SC decision in that state.

Try clicking that link and read the Constitution. You might have a WOW! moment, but it's ok... you'll be fine.

 

[JakeStarkey]

[So your saying the Court gave itself the power to nullify law. We agree. That power is not Constitutional. Never has been.

You are saying that, not me. You really don't get Art III, I understand that. That you and a very small minority to don't like it, I understand that. However, your group's opinion will not be accepted, the same as the anti-anchor baby argument will not be accepted. It is what it is.

 

[WelfareQueen]

[So your saying the Court gave itself the power to nullify law. We agree. That power is not Constitutional. Never has been.

You are saying that, not me. You really don't get Art III, I understand that. That you and a very small minority to don't like it, I understand that. However, your group's opinion will not be accepted, the same as the anti-anchor baby argument will not be accepted. It is what it is.

Jake.....you're wrong. A good friend of mine is a Constitutional Law Professor at the University of Florida.

He agrees with me.

I wrote this letter to him several years ago. He uses it a debate point with his law students. Let me know your thoughts.


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. J






Best Regards,

 

[JakeStarkey]

And I know constitutional scholars who disagree with you and your friend.

But Merry Christmas and a Happy New Year. We are going to get snow on Thursday!

 

[WelfareQueen]

And I know constitutional scholars who disagree with you and your friend.

But Merry Christmas and a Happy New Year. We are going to get snow on Thursday!

Merry Christmas, Jake. Have a nice holiday with your family.

 

[Dante]

they would decide who was right by interpreting the constitution

say g'night dick

Interpreting the constitution means writing the constitution. THINK

think?

Okay, I've thought -- your post contains an imbecilic notion, brought direct to usmb out of your twisted imagination.

 

[Idadunno]

After two years of studying political science--mostly constitutional law, I now understand some of what my professors must have felt with some of my classmates. I am going to send all of them a Christmas card with condolences.

 

[Dante]

After two years of studying political science--mostly constitutional law, I now understand some of what my professors must have felt with some of my classmates. I am going to send all of them a Christmas card with condolences.

very funny

 

[C_Clayton_Jones]

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

 

[WelfareQueen]

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

Yes....you are absolutely correct, but only where State Law may be in conflict with Federal Law.

However, the Founders made zero provision within the Constitution to allow Federal Law to be nullified by Judicial fiat.

Only the Legislative Branch may create, amend, or nullify law. The reason is simple. The Legislative Branch answers directly to the people. We can throw the bastards out. The need for an independent Judiciary means the courts are not answerable to we the people. Therefore there was zero allowance for the Courts to create, amend, or nullify law.

 

[Dante]

some

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

things deserve repeating...

thank you C_Clayton_Jones

 

[C_Clayton_Jones]

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

Yes....you are absolutely correct, but only where State Law may be in conflict with Federal Law.

However, the Founders made zero provision within the Constitution to allow Federal Law to be nullified by Judicial fiat.

Only the Legislative Branch may create, amend, or nullify law. The reason is simple. The Legislative Branch answers directly to the people. We can throw the bastards out. The need for an independent Judiciary means the courts are not answerable to we the people. Therefore there was zero allowance for the Courts to create, amend, or nullify law.

This political safeguards paradigm does not comport with the original intent and understanding of the Founding Generation that the Supremacy Clause authorizes the judiciary to invalidate both state and Federal laws repugnant to the Constitution:

'Relying on the political safeguards of federalism to restrict judicial review of federal statutes overlooks the conditional nature of the Supremacy Clause. Contrary to modern assumptions, the Clause does not allow courts to separate judicial review of state law from judicial review of contrary state law. Rather, whenever federal statutes conflicts with a federal statute, the Clause makes judicial review of state law contingent on judicial review of the federal statute itself. Specifically, the Clause recognizes only three sources of law as "the supreme Law of the Land": the "Constitution," "Laws," and "Treaties" of the United States. Not every federal "Law," however, qualifies under the Clause. Rather, the Clause encompasses only "the Laws of the United States which shall be made in Pursuance" of the Constitution. Although not generally recognized today for its dual purpose, the Clause pursues two distinct goals simultaneously: to secure the supremacy of federal law and to prevent Congress from exceeding the scope of its enumerated powers.[T]he text, history, and structure of the Constitution all tend to confirm that the Supremacy Clause enlists courts to police the bounds of federal power in the course of upholding "the supreme Law of the Land."

[…]

At a minimum, therefore, the Supremacy Clause appears to authorize courts to review the constitutionality of federal statutes as part of the process of resolving conflicts between such statutes and positive state law.'

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1474&context=faculty_publications

 

[WelfareQueen]

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

Yes....you are absolutely correct, but only where State Law may be in conflict with Federal Law.

However, the Founders made zero provision within the Constitution to allow Federal Law to be nullified by Judicial fiat.

Only the Legislative Branch may create, amend, or nullify law. The reason is simple. The Legislative Branch answers directly to the people. We can throw the bastards out. The need for an independent Judiciary means the courts are not answerable to we the people. Therefore there was zero allowance for the Courts to create, amend, or nullify law.

This political safeguards paradigm does not comport with the original intent and understanding of the Founding Generation that the Supremacy Clause authorizes the judiciary to invalidate both state and Federal laws repugnant to the Constitution:

'Relying on the political safeguards of federalism to restrict judicial review of federal statutes overlooks the conditional nature of the Supremacy Clause. Contrary to modern assumptions, the Clause does not allow courts to separate judicial review of state law from judicial review of contrary state law. Rather, whenever federal statutes conflicts with a federal statute, the Clause makes judicial review of state law contingent on judicial review of the federal statute itself. Specifically, the Clause recognizes only three sources of law as "the supreme Law of the Land": the "Constitution," "Laws," and "Treaties" of the United States. Not every federal "Law," however, qualifies under the Clause. Rather, the Clause encompasses only "the Laws of the United States which shall be made in Pursuance" of the Constitution. Although not generally recognized today for its dual purpose, the Clause pursues two distinct goals simultaneously: to secure the supremacy of federal law and to prevent Congress from exceeding the scope of its enumerated powers.[T]he text, history, and structure of the Constitution all tend to confirm that the Supremacy Clause enlists courts to police the bounds of federal power in the course of upholding "the supreme Law of the Land."

[…]

At a minimum, therefore, the Supremacy Clause appears to authorize courts to review the constitutionality of federal statutes as part of the process of resolving conflicts between such statutes and positive state law.'

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1474&context=faculty_publications

No it does not. Absolutely false. The Supremacy Clause does not grant any authority to the Courts to invalidate any law passed by the Congress.

The clause is specific only to conflict between Federal and State Law.


I have asked this question four times....yet no one on the left will answer it. I will try once more.


What Branch of the Government other than the Legislative has the power to create, amend, or nullify Law?

 

[Dante]

It was the original intent of the Founding Generation that the judiciary have the authority to invalidate state laws repugnant to the Constitution:

“Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.”

The 8220 Law of the Land 8221 Clause of Magna Carta the Supremacy Clause and Judicial Review Online Library of Law Liberty

Yes....you are absolutely correct, but only where State Law may be in conflict with Federal Law.

However, the Founders made zero provision within the Constitution to allow Federal Law to be nullified by Judicial fiat.

Only the Legislative Branch may create, amend, or nullify law. The reason is simple. The Legislative Branch answers directly to the people. We can throw the bastards out. The need for an independent Judiciary means the courts are not answerable to we the people. Therefore there was zero allowance for the Courts to create, amend, or nullify law.

This political safeguards paradigm does not comport with the original intent and understanding of the Founding Generation that the Supremacy Clause authorizes the judiciary to invalidate both state and Federal laws repugnant to the Constitution:

'Relying on the political safeguards of federalism to restrict judicial review of federal statutes overlooks the conditional nature of the Supremacy Clause. Contrary to modern assumptions, the Clause does not allow courts to separate judicial review of state law from judicial review of contrary state law. Rather, whenever federal statutes conflicts with a federal statute, the Clause makes judicial review of state law contingent on judicial review of the federal statute itself. Specifically, the Clause recognizes only three sources of law as "the supreme Law of the Land": the "Constitution," "Laws," and "Treaties" of the United States. Not every federal "Law," however, qualifies under the Clause. Rather, the Clause encompasses only "the Laws of the United States which shall be made in Pursuance" of the Constitution. Although not generally recognized today for its dual purpose, the Clause pursues two distinct goals simultaneously: to secure the supremacy of federal law and to prevent Congress from exceeding the scope of its enumerated powers.[T]he text, history, and structure of the Constitution all tend to confirm that the Supremacy Clause enlists courts to police the bounds of federal power in the course of upholding "the supreme Law of the Land."

[…]

At a minimum, therefore, the Supremacy Clause appears to authorize courts to review the constitutionality of federal statutes as part of the process of resolving conflicts between such statutes and positive state law.'

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1474&context=faculty_publications

No it does not. Absolutely false. The Supremacy Clause does not grant any authority to the Courts to invalidate any law passed by the Congress.

The clause is specific only to conflict between Federal and State Law.


I have asked this question four times....yet no one on the left will answer it. I will try once more.


What Branch of the Government other than the Legislative has the power to create, amend, or nullify Law?

translation of welfarequeen's post: (hands covering ears) na, na, na, na, na, na, na....

Straw man - Wikipedia the free encyclopedia
A straw man is a common type of argument and is an informal fallacy based on the misrepresentation of an opponent's argument.[1] To be successful, a straw man argument requires that the audience be ignorant or uninformed of the original argument.

The so-called typical "attacking a straw man" argument creates the illusion of having completely refuted or defeated an opponent's proposition by covertly replacing it with a different proposition (i.e., "stand up a straw man") and then to refute or defeat that false argument ("knock down a straw man") instead of the original proposition​

 

[WelfareQueen]

Dante....you'd think it would be simple. The power to create, amend, and nullify Law under our system of Government is pretty fucking basic.

Which Branch of Government is authorized under the Constitution to do those three things?

How much more basic and simple a question can be asked?

 

[Dante]

Dante....you'd think it would be simple. The power to create, amend, and nullify Law under our system of Government is pretty fucking basic.

Which Branch of Government is authorized under the Constitution to do those three things?

How much more basic and simple a question can be asked?

Federalist 78?

 

[WelfareQueen]

Dante....you'd think it would be simple. The power to create, amend, and nullify Law under our system of Government is pretty fucking basic.

Which Branch of Government is authorized under the Constitution to do those three things?

How much more basic and simple a question can be asked?

Federalist 78?

Not the Constitution. Doesn't count.

I have read the Federalist papers, but it's been years. Without looking, my guess is you're referencing Hamilton. He advocated for a stronger Judiciary that was ultimately rejected in the Constitution. Fortunately, Madison was more influential and held sway.

And btw....Madison is the greatest political genius in our history. He truly is the Father of the Constitution.

 

[Dante]

Dante....you'd think it would be simple. The power to create, amend, and nullify Law under our system of Government is pretty fucking basic.

Which Branch of Government is authorized under the Constitution to do those three things?

How much more basic and simple a question can be asked?

Only the Legislative Branch can do all three, but your ignorance of how courts make law: GeorgiaLegalAid.org A guide to free and low-cost legal aid assistance and services in Georgia

there is more that can be said on what courts do and don't do, but as long as you fallaciously frame the argument, there is no room for intelligent discussion that would involve context, our history and more.

 

[Dante]

Dante....you'd think it would be simple. The power to create, amend, and nullify Law under our system of Government is pretty fucking basic.

Which Branch of Government is authorized under the Constitution to do those three things?

How much more basic and simple a question can be asked?

Federalist 78?

Not the Constitution. Doesn't count.

I have read the Federalist papers, but it's been years. Without looking, my guess is you're referencing Hamilton. He advocated for a stronger Judiciary than was ultimately agreed to in the Constitution. Fortunately, Madison was more influential and held sway.

And btw....Madison is the greatest political genius in our history. He truly is the Father of the Constitution.

the basic premise of your argument is flawed in the context of the discussion