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

[WelfareQueen]

The very first words of the constitution after the preamble are

All legislative powers herein granted shall be vested in a congress of the united states

Writing laws and repealing laws are legislative powers and yet federal judges are constantly declaring laws unconstitutional and repealing them and sometimes even writing a new law in its place!

Article 3 Section 1&2:

"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;

Article III | LII / Legal Information Institute

^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.

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.

-- 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.

Sir, you are exactly correct. It is amazing how few people know this.

 

[JakeStarkey]

The Supreme Court has no authority to declare any law unconstitutional. The Court attempted to give itself that power in the Case Marbury vs Madison.

The authority for this type of judicial review must be granted by the we the people. We have never done so. The Constitution gives the Court no such authority. Look it up.

SCOTUS obviously disagrees with you, and that is all that matters.

Jake, as usual you're wrong. Presidents have ignored the Supreme Court in the past...they will do so again. Google Andrew Jackson/Supreme Court.

What a convoluted answer that proves nothing the presidents disobeyed the law.

Google SCOTUS and judicial review.

 

[WelfareQueen]

SCOTUS obviously disagrees with you, and that is all that matters.

Jake, as usual you're wrong. Presidents have ignored the Supreme Court in the past...they will do so again. Google Andrew Jackson/Supreme Court.

What a convoluted answer that proves nothing the presidents disobeyed the law.

Google SCOTUS and judicial review.

Grilfriend,


You have not refuted my point or the point of other posters. Let me be explicit.


1. The Court has no authority under the Constitution to negate or invalidate law by declaring it unconstitutional.


2. The Chief Executive has overridden the Supreme Courts decisions in the past. The precedent has been set, which means it can happen again whenever the Chief Executive so desires.

 

[regent]

There is evidence that the framers intended the court to do what they do, Federalist Papers and all that.
The framers simply didn't put it into the Constitution and the Court decided lo and behold it was there all the time. People have accepted Marbury and most think it was written into the Constitution.

 

[WelfareQueen]

There is evidence that the framers intended the court to do what they do, Federalist Papers and all that.
The framers simply didn't put it into the Constitution and the Court decided lo and behold it was there all the time. People have accepted Marbury and most think it was written into the Constitution.

Yes sir,


Another very bright poster imho. There are some Federalist Articles which seem to support judicial review. There are some which do not seem to support it. The bottom line: All Law in this Republic is and must be derived from We the People.

We the People have never sanctioned any Court to negate Law by declaring it unconstitutional. If We the People have never sanctioned judicial review it is not Law...it is simply the Court's opinion.

Any Chief Executive can ignore a declaration of unconstitutionality as they see fit since it does not carry the force of Law (i.e. the People have not sanctioned it). Andrew Jackson ignored the Supreme Court without consequence. Other Presidents will do so as well.

 

[Statistikhengst]

Jake, as usual you're wrong. Presidents have ignored the Supreme Court in the past...they will do so again. Google Andrew Jackson/Supreme Court.

What a convoluted answer that proves nothing the presidents disobeyed the law.

Google SCOTUS and judicial review.

Grilfriend,


You have not refuted my point or the point of other posters. Let me be explicit.


1. The Court has no authority under the Constitution to negate or invalidate law by declaring it unconstitutional.


2. The Chief Executive has overridden the Supreme Courts decisions in the past. The precedent has been set, which means it can happen again whenever the Chief Executive so desires.

Yo, what are U dudes planning to grill???

 

[JakeStarkey]

What a convoluted answer that proves nothing the presidents disobeyed the law.

Google SCOTUS and judicial review.

Grilfriend,


You have not refuted my point or the point of other posters. Let me be explicit.


1. The Court has no authority under the Constitution to negate or invalidate law by declaring it unconstitutional.


2. The Chief Executive has overridden the Supreme Courts decisions in the past. The precedent has been set, which means it can happen again whenever the Chief Executive so desires.

Yo, what are U dudes planning to grill???

WQ et al is afraid to google SCOTUS and Article III and Judicial Review.

He thinks his disagreement with Judicial Review is some kind of fact or something.

 

[ShootSpeeders]

There is evidence that the framers intended the court to do what they do, Federalist Papers and all that.

So produce the evidence, you nitwit. Don't just say - somewhere in the federalist papers.

I can't imagine the founders approving of unelected judges having final say on every issue.!!!

 

[WelfareQueen]

There is evidence that the framers intended the court to do what they do, Federalist Papers and all that.

So produce the evidence, you nitwit. Don't just say - somewhere in the federalist papers.

I can't imagine the founders approving of unelected judges having final say on every issue.!!!

A few of the Federalists do seem to support judicial review (I can't remember which ones off the top of my head). It doesn't matter. The Federalists papers do not carry the force of Law, only the Constitution does.

The Constitution does not give the Courts the authority to negate Law by declaring it unconstitutional.

 

[WelfareQueen]

Grilfriend,


You have not refuted my point or the point of other posters. Let me be explicit.


1. The Court has no authority under the Constitution to negate or invalidate law by declaring it unconstitutional.


2. The Chief Executive has overridden the Supreme Courts decisions in the past. The precedent has been set, which means it can happen again whenever the Chief Executive so desires.

Yo, what are U dudes planning to grill???

WQ et al is afraid to google SCOTUS and Article III and Judicial Review.

He thinks his disagreement with Judicial Review is some kind of fact or something.

Jake...please, why do you keep doing this to yourself? Three different posters have provided evidence you are wrong and still you continue. It kind of defies logic unless you just enjoy being contrarian. Here is something else to chew on. Enjoy.

Criticism of Judicial Review


"Jefferson disagreed with Marshall's reasoning in this case :

You seem to consider the judges as 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 are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and 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.[33][34][35]

Some legal scholars have questioned the legal reasoning of Marshall's opinion. They argue that Marshall selectively quoted the Judiciary Act of 1789, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.[36] These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction.[37] Furthermore, it has been argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting … public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."[38]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch.[39] Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution.[citation needed] Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases.[citation needed]

Marbury can also be criticized on grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper.[40] Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.[41]

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms."

 

[WelfareQueen]

What a convoluted answer that proves nothing the presidents disobeyed the law.

Google SCOTUS and judicial review.

Grilfriend,


You have not refuted my point or the point of other posters. Let me be explicit.


1. The Court has no authority under the Constitution to negate or invalidate law by declaring it unconstitutional.


2. The Chief Executive has overridden the Supreme Courts decisions in the past. The precedent has been set, which means it can happen again whenever the Chief Executive so desires.

Yo, what are U dudes planning to grill???

Thanks for the typo lesson. Also, glad to see you butched up your avi a little bit. The other one was a little fey...not that there's anything wrong with that. Carry on, and Merry Christmas.

 

[RetiredGySgt]

The Supreme Court has no authority to declare any law unconstitutional. The Court attempted to give itself that power in the Case Marbury vs Madison.

The authority for this type of judicial review must be granted by the we the people. We have never done so. The Constitution gives the Court no such authority. Look it up.

Article III is clear. It clearly states and gives to the Courts the right of review and oversight. Further it gives to the Supreme Court the right to determine if a law is Constitutional. It has already been posted do you need it posted again?

As for right wing, guess what you left wing hacks, I am right wing.

 

[RetiredGySgt]

Article 3 Section 1&2:

"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;

Article III | LII / Legal Information Institute

Hey stupid. We've explained this to you before. Writing laws and repealing laws are NOT judicial powers. They belong to congress, as the constitution says.

Article III section 2 is quite clear. The Supreme Court has jurisdiction to hear and decide ALL cases involving the US. DECIDE the case, power granted by Article III section 2. That means the Court has the power to STATE what laws are or are not Constitutional if they come before the Court.

 

[RetiredGySgt]

There is evidence that the framers intended the court to do what they do, Federalist Papers and all that.

So produce the evidence, you nitwit. Don't just say - somewhere in the federalist papers.

I can't imagine the founders approving of unelected judges having final say on every issue.!!!

A few of the Federalists do seem to support judicial review (I can't remember which ones off the top of my head). It doesn't matter. The Federalists papers do not carry the force of Law, only the Constitution does.

The Constitution does not give the Courts the authority to negate Law by declaring it unconstitutional.

Article III section 2 clearly does so. IT clearly states that in all matters concerning the US the Supreme Court has legal authority jurisdiction and power to hear and determine the legal out come of those cases.

 

[WelfareQueen]

There is not a single legal scholar in America who would agree with you. Article III gives the Courts authority 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."

There is no authorization to invalid existing law under that article. None. The Courts have every right to point out inconsistencies with existing law and the Constitution. It is a massive leap to then negate law. The Court has no such authority to negate law under the Constitution. It gave itself that authority in one Court decision...Marbury vs Madison. Every legal scholar in America would tell you that. If you disagree...okay...but you're wrong.


These are two key quotes from key legal articles on judicial review. Please read them carefully. No lawyer in America would agree with your point that the Constitution gives explicit authorization to negate law. That authority clearly does not exist.

"Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms."


"The argument against judicial review is that it is not explicitly stated in the Constitution. This is a power that was created by Marshall's Court. And, the executive and legislative branches also have a Constitutional responsibility to uphold the Constitution. The argument is that the executive and legislative have an equal responsibility with the judicial branch to interpret the Constitution."

 

[WelfareQueen]

So produce the evidence, you nitwit. Don't just say - somewhere in the federalist papers.

I can't imagine the founders approving of unelected judges having final say on every issue.!!!

A few of the Federalists do seem to support judicial review (I can't remember which ones off the top of my head). It doesn't matter. The Federalists papers do not carry the force of Law, only the Constitution does.

The Constitution does not give the Courts the authority to negate Law by declaring it unconstitutional.

Article III section 2 clearly does so. IT clearly states that in all matters concerning the US the Supreme Court has legal authority jurisdiction and power to hear and determine the legal out come of those cases.

Agreed. But not to nullify Law. Only We the People can create, amend, or nullify law under the Constitution. The Executive Branch and the Judiciary have no such authority. Period.

 

[ShootSpeeders]

Article III is clear. It clearly states and gives to the Courts the right of review and oversight. Further it gives to the Supreme Court the right to determine if a law is Constitutional. .

HAHAHA. Making stuff up again, i see. Fact is the constititution says just the opposite when it grants all legislative power to the congress. Writing and repealing laws is a legislative power.

 

[ShootSpeeders]

There is no authorization to invalid existing law under that article. None. The Courts have every right to point out inconsistencies with existing law and the Constitution. It is a massive leap to then negate law. The Court has no such authority to negate law under the Constitution. It gave itself that authority in one Court decision...Marbury vs Madison. Every legal scholar in America would tell you that. If you disagree...okay...but you're wrong.

Yes indeed. The Supreme Court has every right to say that in their opinion a law is unconstitutional just like the president or a congressman has the right to say that. But that doesn't mean the law is repealed.

 

[JakeStarkey]

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

We have seen the silly ones above demonstrate no understanding of Article III of the Constitution, of the document itself, of American history and law.

Their opinions are only that, not fact, and have been rejected by the institutions who make those decisions.

 

[longknife]

Why did I waste my time posting and linking to the federal acts which further outlined the powers of the federal courts?