Is Judicial Review Constitutional?

[Catatonic]

I posted this on another forum, and its resulted in a great discussion.

Is there anything I should add to this? Here is my post:

At the beginning of Jefferson's presidency, the Supreme Court ruled that it has the authority to interpret the constitution through judicial review.

I not only disagree with this, I feel it is entirely contrary to the concept of a limited, checked and balanced government intended by the founders.

Here are my arguments:

1) This authority is not granted to the supreme court anywhere in the constitution. If the constitution really is the ultimate law of the land, that means the supreme court's interpretations are not legal.

2) It is obvious that the founders intended the people to rule this country through the constitution rather than allow ultimate, unquestionable authority to reside in the hands of 9 members of one branch of the federal government.

3) I see no source granting the Supreme Court the authority to grant itself power not explicitly stated in the constitution.





Your thoughts? The hardest part of this discussion so far has been keeping people on track with avoiding discussion of whether or not judicial review is a godo thing, but instead whether or not the SC legally has this authority in the first place.

Edit: I have further gone on to argue that because this authority makes the supreme court's opinion the true law of the land, rather than the constitution, we are living in a dictatorship, by definition.

 

[torchbearer]

If its not written in the constitution, it doesn't have the power.
You will need an amendment.

 

[Matt Collins]

The federal judiciary is there to resolve disputes, not to "interpret" the Constitution. This power was unconstitutionally usurped during the case Marbury vs Madison. Anyone who wants to understand more about this should read the Kevin Gutzman book called "Politically Incorrect Guide to the Constitution". It's a very good read and explains this in much more detail.

 

[Njon]

Here's a great article on the subject: http://www.thenewamerican.com/usnews/constitution/794

 

[Catatonic]

If its not written in the constitution, it doesn't have the power.
You will need an amendment.

In regards to your sig, do you think that means the unconstitutional laws the SC rules are constitutional are still void, regardless of their ruling?

 

[rockandrollsouls]

The federal judiciary is there to resolve disputes, not to "interpret" the Constitution. This power was unconstitutionally usurped during the case Marbury vs Madison. Anyone who wants to understand more about this should read the Kevin Gutzman book called "Politically Incorrect Guide to the Constitution". It's a very good read and explains this in much more detail.

Bingo. Individuals are correct in assuming unconstitutional legislation is null and void, but there is no power for the courts to interpret the Constitution nor should there be.

How can a court define the Constitution when the Constitution defines the courts?

 

[Catatonic]

Amazing, I just went to the supreme court's website, and in the section about interpreting the government, they actually reference their own ruling right there on the website. They don't even try to argue that their authority was granted by the constitution.

 

[Acala]

The worst

And the worst the thing about the SC's self-appointed role as the "decider" when it comes to the Constitutionality of government action is that it undermined and ultimately helped destroy the REAL Constitutional check on Federal power - nullification and secession. "You don't need to decide for yourselves if our actions are Constitutional. WE will tell you!"

 

[torchbearer]

In regards to your sig, do you think that means the unconstitutional laws the SC rules are constitutional are still void, regardless of their ruling?

i'm not sure what you are talking about.
The constitution was written to restrain the federal government.
Any power not enumerated to the federal government in the constitution is reserved for the states or the people of the state.

 

[demolama]

The American system suffered from a fatal flaw... Most Americans were former British subjects, loved being British but hated the crown. England system of law is based off court rulings. There was no written constitution so their system of law was based off court rulings for the most part. This is where stare decisis came into usage.

The American system developed a written constitution which could not be shaped and reshaped via court rulings. Yet because our entire system is based off the British system such legal ideas like stare decisis continued. When a court rules off of previous rulings and not the constitution you get usurpation especially when the other rulings were so off basis. This is what we see today.

Our founders wanted judgment of the courts in a particular case were only meant for that case.. not for future rulings. This is why Madison assumed they were the weakest of the 3 branches... they had no lasting interpretation and had no power to force judgments.

States being the agreeing members of the Constitution should be and did for a long time have the right to interpret federal laws. They after all created the federal government. They had just as much say at what was constitutional as the courts did. Our problems revolves around the idea that the courts have binding say on everything. Marbury V Madison should have had no more impact on the future of the United States than any other court case, yet this case opened a flood gate for more and more nationalistic policies that favored the federal government over the states. National supremacy while failed at the federal convention was no match for the people persistent and had the resilience enough to see the flaw in the court system to their favor their agenda when they couldn't change things through other means.

 

[10thAmendment]

One problem is the following.

When winning is everything for trial lawyers, it doesn't matter what the Constitution says. The only thing that matters is what a Constitution-ignoring judge says that the Constitution says.

 

[Matt Collins]

This is where stare decisis came into usage.

While the idea is to keep legal chaos from happening, it is one of the WORST concepts in our legal system

The American system developed a written constitution which could not be shaped and reshaped via court rulings. Yet because our entire system is based off the British system such legal ideas like stare decisis continued. When a court rules off of previous rulings and not the constitution you get usurpation especially when the other rulings were so off basis. This is what we see today.

Our founders wanted judgment of the courts in a particular case were only meant for that case.. not for future rulings. This is why Madison assumed they were the weakest of the 3 branches... they had no lasting interpretation and had no power to force judgments.

States being the agreeing members of the Constitution should be and did for a long time have the right to interpret federal laws. They after all created the federal government. They had just as much say at what was constitutional as the courts did. Our problems revolves around the idea that the courts have binding say on everything. Marbury V Madison should have had no more impact on the future of the United States than any other court case, yet this case opened a flood gate for more and more nationalistic policies that favored the federal government over the states. National supremacy while failed at the federal convention was no match for the people persistent and had the resilience enough to see the flaw in the court system to their favor their agenda when they couldn't change things through other means.

You sir are brilliant!

 

[jonahtrainer]

This is a very thorny issue. Jefferson thought the principle of judicial review made the constitution but a ball of wax in the hands of the judiciary. But who else will do it?

Surely it should not be the Executive nor the Legislature. One problem I find is in the Federal Judiciary determining cases or controversies between the Federal government and the States. There is inherent bias. Perhaps there could be a Council of the Constitution composed of the Chief Justices of each State supreme court that would act like a court of review to the USSC. That would shift more power to the States and was an idea floated around the Constitutional Convention.

But the bottom line with The State is that there has to be a final decider that can kill people.

 

[10thAmendment]

I'm sorry for being naive, but this issue caught me by surprise a few weeks ago.

Does the "forgotten" power of the grand jury associated with the 5th A. change the way that we can think of judicial review?

• American Grand Jury

More specifically, can grand juries of the people indict Constitution-ignoring judges and get them off the bench?

 

[torchbearer]

I'm sorry for being naive, but this issue caught me by surprise a few weeks ago.

Does the "forgotten" power of the grand jury associated with the 5th A. change the way that we can think of judicial review?

• American Grand Jury

More specifically, can grand juries of the people indict Constitution-ignoring judges and get them off the bench?

I think impeachments must begin in the congress.

 

[nate895]

Common law allows judicial review, but it is important to note that traditional common law judicial review includes the jury. They are the ultimate deciders of the justness of a law, and that is why jury verdicts have to be unanimous. If a law is truly unjust, in any set of 12 randomly selected electors at least one will oppose it. The common law is very important to maintain because it almost always favors property rights, and all rights are considered inherent in the fact that we own our own bodies. In civil law, rights are codified by the legislature or constitution and other rights aren't allowed except through law. Civil law is based on the presumption that the government has sovereignty, while common law is based on individual sovereignty.

 

[Catatonic]

This is a very thorny issue. Jefferson thought the principle of judicial review made the constitution but a ball of wax in the hands of the judiciary. But who else will do it?

Surely it should not be the Executive nor the Legislature. One problem I find is in the Federal Judiciary determining cases or controversies between the Federal government and the States. There is inherent bias. Perhaps there could be a Council of the Constitution composed of the Chief Justices of each State supreme court that would act like a court of review to the USSC. That would shift more power to the States and was an idea floated around the Constitutional Convention.

But the bottom line with The State is that there has to be a final decider that can kill people.

Whether or not its a good idea is a seperate issue. If this is how the people want it set up, then there should be a constitutional ammendment.

Why can't we increase the size of the supreme court and have a judge elected from each state, or allow a jury to make the ultimate decision? It seems like there are plenty of options besides what we've got.

But its mostly the fact that the judicial branch gave itself this power that pisses me off.

 

[10thAmendment]

I think impeachments must begin in the congress.

Thanks for replying.

To the best of my knowledge, indicting a government official with the grand jury power of the people is not the same thing as Congress impeaching a government official. Grand jury power has to do with the Constitution, particularly the 5th Amendment, preserving something in english law that gives ordinary people, the grand jury, the power to remove corrupt government officials; that's my current understanding.

The problem with grand jury power is the following. The corrupt federal government, looking for ways to overstep its constitutional authority since the Constitution was made, has essentially "repealed" grand jury power via federal codes. The effect of these bogus codes is that grand jury power has been forgotten.

And people are now tapping grand jury power to have the standing to challenge Obama's citizenship qualifications to be president.

 

[torchbearer]

Thanks for replying.

To the best of my knowledge, indicting a government official with the grand jury power of the people is not the same thing as Congress impeaching a government official. Grand jury power has to do with the Constitution, particularly the 5th Amendment, preserving something in english law that gives ordinary people, the grand jury, the power to remove corrupt government officials; that's my current understanding.

The problem with grand jury power is the following. The corrupt federal government, looking for ways to overstep its constitutional authority since the Constitution was made, has essentially "repealed" grand jury power via federal codes. The effect of these bogus codes is that grand jury power has been forgotten.

And people are now tapping grand jury power to have the standing to challenge Obama's citizenship qualifications to be president.

Let me rephrase.
Only congress can impeach a federal judge.

 

[10thAmendment]

Let me rephrase.
Only congress can impeach a federal judge.

Given that the states can amend the Constitution, the idea that only congress can impeach a federal judge is not chiseled in granite.

Again, can the 5th A. related grand jury power of the people get a rotten judge off the bench, congress be damned?