The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
These are the words of John Marshall, the fourth U.S. chief justice, written in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress.
Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision.
This is honesty from Roger Simon, a hardcore Leftist slug.
His piece is a beautiful bit of whining about the Court. But he will not whine when the Court takes a decision of which he approves.
The hypocrisy of the Left (and by extension, the Establishment) is fully on display in this article. As long as the Court does what he wants, it is relevant and noble. When it does not do what he wants, it is a rogue entity that artificially created the power it wields.
Mr. Simon and I agree on the fundamental point: The Court does not have the Authority under the Constitution to impose it's decision upon either the Executive or Legislative.
"Checks and Balances" is not what you learned in Civics class. "Checks & Balances" is not the power to force the other branches to yield.
Checks and Balances is the power of each branch to decide for itself what is and is not Constitutional, and to act according to its own decision within that sphere of influence. If the People disagree, we can vote out the politicians with whom we disagree. If We the People disagree with the Judiciary, we have the Right to nullify and we have the Right to demand Impeachment.
But never in a million years in a billion parallel universes did our Framers ever intend that the few Members of the Court would have final power to decide what the rest of us must do...hence the Ninth & Tenth Amendments. Hence, Impeachment. Hence, Treason.
Judicial Review is a stolen power, a facade that benefits our Masters, with minor inconveniences from time to time. They permit the fallacy to exist, so that the illusion of legitimacy is accepted by most of your Countrymen.
And, it works.
Think about it.
Here is the entire Roger Simon piece.
UPDATE: I think some people grasp concepts best when analogies are used. So, try this one: Our Governance under the Constitution, in the spirit of the DoI and with the expressly forbidden acts articulated in the BoR, was never meant to be an absolutely rigid construct.
Think of a racetrack. There are hard barriers and all racers must stay in-bounds. In our governance these bounds are drawn by the express powers granted in the Constitution and the express acts that are forbidden in the Bill of Rights.
But within these boundaries, the individual cars (or boats if you prefer) have room to move, to even skid across the water or roadway from time to time, to bump into one another. In governance this "skidding" and movement is the mechanics of governing, where rubber meets the road, if you will. It is not precise. It was known by our Framers that precision was unattainable, since the Nature of Man was involved.
Get it?
Kerodin
III
"Checks and Balances is the power of each branch to decide for itself what is and is not Constitutional, and to act according to its own decision."
ReplyDeleteYou need to go back to Civics class. And by the way, about this?
"Nowhere in the Constitution is the Supreme Court given this power."
Are you serious?
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.
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.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
By the way, my last comment was on topic and boy am I ever away. See ya.
ReplyDeleteErin: You have some reading to do. Start with Jefferson on the scope and sphere of influence of the Judiciary.
ReplyDeleteThen go to Madison.
It is not your fault, you are simply falling for what they teach (and have been teaching for several generations) and want you to believe, rather than the reality of the Founder's Intent.
K
Mr. K,
ReplyDeleteIntent is a state of mind. How can you state what another's intent is ?
DAN III, 0.01%
Pennsylvania
Dan: The Framers and Founders made their intent clear in their writings.
DeleteK
This subject was broached in the Federalist Papers. Most people don't read it or finish it because it is rather dry. But people, read the damn thing anyhow.
DeleteAnd read Hamilton very carefully. He, like the rest, are articulating way above the 12th grade level.
If a court has jurisidction 'AS TO LAW' as well as FACT, then it is a trier of both the LAW and the FACTS of the case brought before it.
ReplyDeleteIf it is a trier of the LAW, then it must of necessity determine what the LAW is, and how (or even IF) it applies in the case before it.
If it must determine what the LAW is and its applicability to the FACTS of the case, then it must of necessity determine what the LAW is NOT and how and in what way it is NOT applicable to the case before it, as well.
And is this not 'judicial review'?
Granted, the Court is not empowered to unilaterally DECLARE a law unconstitional or void or whatever. But IN A CASE BROUGHT BEFORE IT, it is REQUIRED under the constitution to be a trier not only of the facts, but of the LAW AS WELL.
Hence, I see judicial review written right there in the Constitution.
The decision referenced was made in 1803. That is 14 years after the ratification of the Constitution is it not? 1789? Or do we go by when the thing was finally ratified, with the BOR, in 1791? That would mean the 'evil usurping decision' came only 12 years after the Constitution was enacted.
Question: In 1803, was there ANY hue and cry about the how the Court had overstepped its bounds, usurped unconstitutional powers, and created out of whole cloth an entirely new and false governmental and judicial system?
I ask this sincerely. What was the nation's response to that decision? If the nation - including many of the Founders themselves - were silent... then what does that imply?
JD
JD: The Supreme Court is, in fact, able to declare a law "unconstitutional", and thus refuse to convict.
DeleteBut it has no "superior" power to force the other branches to agree or act in compliance with their decision. Remember, all branches are equal, so no branch may have the power to force another branch to do X or Y unless expressly articulated in the Constitution.
If any branch objects to the constitutionality of a matter, it may dissent and choose to act on that decision within it's sphere. Thus, if the Executive thinks X is unconstitutional, it may refuse to prosecute. If the Legislative thinks X is unconstitutional it may refuse to fund the Executive to implement.
That is the definition of "Co-Equal Branches" while at the same time having "Checks & Balances".
If We the People object to a law, we were supposed to nullify and/or change our representatives by ballot or impeachment. Of course, those options have been removed.
As to the reaction at the time, several Founders & Framers raised the alarm, not just with SCOTUS but with the Federalists in general who "...retreated to the Judiciary..."
Jefferson wrote extensively on the matter. Of course, he was a visionary with a First Class brain and able to see around corners as to how things would unfold, a skill not as common as we'd like. Most people don't care about anything until the pain is upon them, sufficiently to interfere with the routines of life.
If the Founders & Framers wanted a nine-man oligarchy, they'd have simply drafted the Constitution that way, no?
Here is a discussion on this matter from a while back:
http://iiipercent.blogspot.com/2012/04/if-team-liberty-doesnt-get-it-who-does.html
Best,
K
(Note: if this double posts, please forgive me as I had a glitch while posting...)
ReplyDeleteFrom ye olde wikipedia:
http://en.wikipedia.org/wiki/Marbury_v._Madison
At the Constitutional Convention in 1787, there were a number of references to judicial review. Fifteen delegates made statements about the power of the federal courts to review the constitutionality of laws, with all but two of them supporting the idea.[13]
Likewise, at the state ratifying conventions, over two dozen delegates in at least seven states indicated that under the Constitution, the federal courts would have the power to declare statutes unconstitutional.[14] Professors Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[15]
The concept of judicial review was discussed in the Federalist Papers. Alexander Hamilton asserted in Federalist No. 78 that under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes:
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[16]
The opponents to ratification, known as Anti-federalists, agreed that the federal courts would have the power to declare statutes unconstitutional, but were concerned that this would give the federal courts too much power. Robert Yates argued: "The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void."[17]
(end quote)
There is more there at the link.
Interestingly, it seems the ANTI-Federalists (whom, by the way, I tend to agree with over the Federalists most o fthe time) seem to take YOUR position... as opposed to the Federalists!
Irony, anyone?
JD
One more thing...
ReplyDeleteI would point out that in MArbury vs Madison, the Supremes specifically ruled AGAINST EXPANDING THE POWER OF THE COURT, on the basis that the Congress cannot expand the supreme court's jurisidiction the way it had attempted to do. In other words, rather than a urupation of powers to the Supreme Court, the Marbury decision was specifically rendered in order to PREVENT EXPANSION of the Court's powers.
Unless of course those Justices - members o fthe founding generation - were some really slick, sly, devious bastards... restricting their powers in order to establish a greater power later on... one step back, two steps forward...
Which in turn makes us wonder about the rest of the Founders... was the Constitution itself such a sly, slick, devious sort of document... supposedly restricting government but really opening the door for a future despotism...
Which is exactly what the AntiFederalists were trying to say...
JD
My position is, indeed, anti-federalist in nature, as defined by the intent to limit federal power.
ReplyDeleteK
I guess as I see it 1803 was still the framing period, or maybe the sanding smooth period and the act of allowing SCOTUS a legal review and the power to declare legislation as non-Constitutional fits in nicely. By their declaration they do not arrest or penalize any other branch anyway all they are really doing is stating that the Judicial Branch will not prosecute or otherwise enforce whatever penalty the legislation carries for non-compliance. The other branches just realize that at that point the gig is up so they have no other choice but to comply and live with the decision.
ReplyDeleteNow that being said when the courts begin legislating as they did with the Arizona immigration case to an extent and like they may with this Health Care case... Well that is a different game altogether. At best their verdict should be while we have no issue with X, Y or Z we have to declare the whole thing void because of A.
Although not specifically stated the act of Judicial review was implied and so where the checks and balances. With the Judicial branch they have the ability to just refuse to uphold and not prosecute. The Executive Branch does not have that right even though they are doing it right now.
The Constitution does not grant "implied" powers, only articulated powers. The Framers could have easily included Judicial Review if they had chosen to do so. But, of course, the concept of Judicial Review that would bind the other two branches would make the rest of the document irrelevant, which is why they did not give SCOTUS the power to bind the other two branches - they wanted a republic, not an oligarchy.
DeleteYour final sentence: "The Executive Branch does not have that Right..."
Of course they have that Right, indeed they have the obligation to refuse to execute laws they find to be unconstitutional. How can we have "Co-Equal Branches" if the Legislature and Judiciary can team up on the Executive and force them to do their bidding?
Article II Section III Clause IV obtains only to Constitutional Laws, obviously. Thus, the Executive can tell the Legislature and Judiciary to stuff it, and face the voters and States for a final ruling.
K
Oh ya I must add as well that just like the omission or oversight in not applying a term limit to other offices the same oversight applies to the Supreme Court Justices. The thought that anyone would live so long so as to become a tyrannical council of 4 or 9 as the case maybe was completely alien to them.
ReplyDelete"It is not your fault, you are simply falling for what they teach (and have been teaching for several generations) and want you to believe, rather than the reality of the Founder's Intent."
ReplyDeleteNeither would matter, if Rule of Law could be an actuality. Were we so lucky, all that would matter is what the words say--the words of the law itself, which in this case is the Constitution--and that's that. But of course, that's not how it goes. Not ever.
And for you, if I understand you correctly, that's just one of the nagging problems of trying to have Rule of Law and Not Rule of Law simultaneously. I say choose the one that's achievable.
Jim: I'm not advocating for Not Rule of Law.
DeleteRule of Law (rather than Rule of Men) is the only hope Liberty has in the real world. But constant vigilance is the price to be paid.
Rule of Law, to work, must be limited to malum in se crimes, enforced by every Countryman, and founded on common sense. It means a return to having the spine to rid our nests of vipers, which can be hard and messy work.
We may never get it perfect, for we are imperfect creatures. But it is a suitable ideal for which to strive. And a nation filled with people who are trying is a nation that will function well.
K
"Rule of Law (rather than Rule of Men) is the only hope Liberty has in the real world."
ReplyDeleteI sure hope that's wrong! Look, what you wrote about Rule of Law is all correct, but they're only ideas. As I know you agree, the ACTION is taken by individuals and only by individuals.
BTW, you are arguing Not Rule of Law if you believe those veterans could properly do ANYTHING with someone else's property, in the flag example.
No, I don't believe in sacrificing the good in pursuit of the perfect, but that's not what's happening here. The FACT is that it's ALWAYS "Rule by Men." That's because there's nothing else there. Unless the individual men themselves choose to abide the Rule of Law, the ideas contained therein don't really matter.
"But it is a suitable ideal for which to strive."
Maybe so, but that too doesn't matter. You and I and anyone else may strive for whatever we wish, but unachievable goals don't make sense.
The problem is that Rule of Law, or anything else that has to do with how one should rationally act with others, is outside of the realm of thugs. You either behave civilly with others, or you physically force them to do what you want. Those are two alternatives and fundamentally, they are the ONLY two alternatives.
You can only deal with a thug with thuggery, duh, so one's own commitment to rationality or even the Rule of Law, have nothing to do with how one handles thugs. This is what "Patriots" have learned over the past few years, but their commitment to the con of Rule of Law, is keeping them from the simple understanding that their lives are their own to live.
It never was about how to handle the few thugs among us. It was about whether people should be free to move forward--create and produce--by their own judgment. The con has been persuading those people, which is almost all of us, that they can't do it without a bunch of thugs protecting them. Nice move, if you're the thug.
The good part of the so-called Patriot movement is that clear-thinking decent men who just want to live, are saying, "Thanks anyway, but we'll figure out how to protect ourselves on our own. So take a leap. We're done with your bullshit."
They're just still afraid to scream out on whose behalf they're doing it. When that changes, the dam will open.