The U.S. Constitution's double jeopardy "loophole"

[FauxCapitalist]

Source: http://fauxcapitalist.com/2014/01/04/the-u-s-constitutions-double-jeopardy-loophole/
See article for links.

The no double jeopardy provision of the Fifth Amendment to the U.S. Constitution reads:

“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;“​

The double jeopardy “loophole” is this; that where the accused is acquitted of a state crime, he/she is then tried for the same federal crime, and vice-versa.

The original intent of the Bill of Rights was to only limit the newly-created federal government, and not the States. Then, subsequent to the American Civil War, parts of the Bill of Rights have been progressively incorporated against the States.

It wasn’t that the principles of the Bill of Rights shouldn’t apply to the States, but the Bill of Rights didn’t apply to them for two main reasons:

1) Most of the States already had similar bills.

2) A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and subvert the federal design of the government, with the States sovereign within their respective jurisdictions.

Therefore, by original design, this “loophole” wasn’t a loophole because the federal government understood that it had no power to define and prosecute crimes that were completely within the exclusive jurisdiction of the States.

Where it became a problem and a loophole, was when the federal government stepped beyond its constitutional bounds and defined crimes that it had no valid constitutional basis for doing so.

The few and defined federal crimes in the Constitution are treason, piracy, counterfeiting and crimes against the laws of nations.

I don’t share the view of some that Congress had no power to define additional laws.

Article I, Section 8 of the Constitution specifically grants Congress the power to:

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;“​

This gave Congress the power to define any crimes it wanted that would apply to this District.

Outside of that District, I argue that Congress still has the power to define additional crimes. For example, crimes relating to its power to coin money. And we see from the 1792 Coinage Act, that death was the penalty for debasing the currency.

This is further evidenced by Article II, Section 4, which states:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.“
​

The mention of “other high Crimes” implies that Congress can define and punish other “high Crimes”, not only within the District, but outside, because of the mention of “all civil Officers”.

But, the restriction upon defining new crimes is whether it relates to what is “necessary and proper” for carrying out Congress’ 18 enumerated powers.

Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the double jeopardy loophole applies.

How to deal with the federal government going beyond its constitutional boundaries in defining and punishing non-crimes? The States should nullify them by preventing state officials from providing any support or co-operation for the prosecution of these federal non-crimes.

 

[Sonny Tufts]

A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and subvert the federal design of the government, with the States sovereign within their respective jurisdictions.

Not necessarily. A State could always have its own constitutional provision restricting its government to a greater extent than the federal constitution does.

Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the double jeopardy loophole applies.

How are these not necessary and proper for carrying out Congress' power to regulate interstate commerce?

 

[FauxCapitalist]

<<A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and <<subvert the federal design of the government, with the States sovereign within their respective jurisdictions.

<Not necessarily. A State could always have its own constitutional provision restricting its government to a greater extent than the federal constitution does.

Yes, but that wasn't the concern of the framers of the federal Constitution.

<<Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the <<double jeopardy loophole applies.

<How are these not necessary and proper for carrying out Congress' power to regulate interstate commerce?

The interstate commerce clause doesn't grant any power to Congress to prosecute the sale, transport or distribution of any product in the United States, and the proof of that is the 18th Amendment, when the government was more honest then to admit that a constitutional amendment was required to prohibit the sale, manufacture and distribution of liquor.

 

[osan]

The original intent of the Bill of Rights was to only limit the newly-created federal government, and not the States. Then, subsequent to the American Civil War, parts of the Bill of Rights have been progressively incorporated against the States.

Here, original intent must fall to its knees before reason. For example, the Second Amendment which states:

"A well regulated militia, being necessary to the maintenance of a free state, the right of the people to keep and bear arms shall not be infringed."​

speaks to the recognition of a fundamental, preexistent, and inherent human right and by that virtue declares it inviolable. If the amendment is correct in its assumptions of inherency to the creature, then it makes no sense that the injunction against violation would apply only to the federal government. How could one possibly justify the assertion that while the federal government is not allowed to violate the inherent rights of men, the states are free to? It is paradoxical, contradictory, and devoid of any sense or truth.

It wasn’t that the principles of the Bill of Rights shouldn’t apply to the States, but the Bill of Rights didn’t apply to them for two main reasons:

Massive and catastrophic reason FAIL. If the principles embodied in the BoR apply to the states, then the BoR perforce applies precisely because it embodies the principles that apply.

1) Most of the States already had similar bills

.

Possibly implying that because the BoR doesn't apply to them, all they have to do is repeal their own and they are free of restriction. FAIL^2.

2) A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and subvert the federal design of the government, with the States sovereign within their respective jurisdictions.

As could be the case with state bills of rights as it applies to, say, counties within that state. FAIL^3

Therefore, by original design, this “loophole” wasn’t a loophole because the federal government understood that it had no power to define and prosecute crimes that were completely within the exclusive jurisdiction of the States.

And what crimes might those be, pray tell?

Where it became a problem and a loophole, was when the federal government stepped beyond its constitutional bounds and defined crimes that it had no valid constitutional basis for doing so.

This far, this is the only thing that makes the least sense. But to maintain symmetry, the same thing can be said of states as well. Therefore, the federal government is not uniquely naughty in this respect.

The few and defined federal crimes in the Constitution are treason, piracy, counterfeiting and crimes against the laws of nations.

And most of those are either vague at best in their definitions, or are not perforce crimes at all. For example, what is a crime against the laws of nations? Which nations? Which laws? Why is an American obliged to observe the laws of the Czech Republic when at home?

I don’t share the view of some that Congress had no power to define additional laws.

They have no legitimate power of any sort over anyone you care to list, save those who consent to their proclamation of such endowment. I for one do not consent to the least bit of it.

Article I, Section 8 of the Constitution specifically grants Congress the power to:

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;“​

Whoopdee doo. And I grant myself the power to say "screw you". The only difference between us is Theye have more guns. In the end, it all boils down to brute, rude, raw force and the will to use it arbitrarily against the sovereign rights of the individual against his will. That is no authority at all. It is only force.

This gave Congress the power to define any crimes it wanted that would apply to this District.

No, it did not, just as my saying "the moon is made of green cheese" does not make the moon of green cheese. This is all pure bullshit that people accepted because they had not the sense to reject it out of hand the moment it was announced.

Outside of that District, I argue that Congress still has the power to define additional crimes. For example, crimes relating to its power to coin money. And we see from the 1792 Coinage Act, that death was the penalty for debasing the currency.

Extrapolation from the example given fails utterly. From that example a sufficiently gay Congress could conceivably define a new crime of having too small a penis, for which the penalty is death - or perhaps in this case it should be called a penilty.

Far too much of what is found in the Constitution is arbitrary. It also nurtures governmental criminality. It is a cluster-copulation no matter how one slices it.

This is further evidenced by Article II, Section 4, which states:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.“
​

The mention of “other high Crimes” implies that Congress can define and punish other “high Crimes”, not only within the District, but outside, because of the mention of “all civil Officers”.

Exactly, and that sufficiently gay Congress could by the virtue of the reasoning pass the Small Penis Act and put Bill Clinton to death. They would have to pass the Biggest Penis In The Universe Act to get Hillary out of the way. The winter salami that ho' packs in those polyester pant suits is enough to frighten away beings the size of Jupiter.

But, the restriction upon defining new crimes is whether it relates to what is “necessary and proper” for carrying out Congress’ 18 enumerated powers.

And the meaning of that has been, continues to be, and forever shall be "interpreted" in whatever fashion most expediently serves the interests of power.

Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the double jeopardy loophole applies.

Not sure how you made the connection, but I have to agree with your assertion about invalidity.

How to deal with the federal government going beyond its constitutional boundaries in defining and punishing non-crimes? The States should nullify them by preventing state officials from providing any support or co-operation for the prosecution of these federal non-crimes.

And when the states do the same? Shall the fedgov nullify them? Methinks you are missing the truly big picture in all of this, which is that government is never valid because it is necessarily arbitrary in its construction and it is not possible to demonstrate that any subset of a population holds authority over the rest as matters of formal and regular governance duty. It is all lies, smoke, and mirrors.

I think I see what you are stabbing at, but it fails because you appear to presume state authority in the precise place you claim federal authority does not exist, and it is inconsistent. None of the authority to which you refer exists independent of the self-sourced assertion. By the same virtue that any "state" claims authority, so do I. You must all kow tow to my supremacy. Why don't you? Because I don't have enough guns. Were it otherwise, you'd all be on your knees to me. That is where the difference lies and it is all endlessly revolting bullshit.

 

[FauxCapitalist]

osan, with your mention of "bullshit", and other words, it comes across as emotionalism, so I won't bother with a logical response to anything you said.

 

[osan]

osan, with your mention of "bullshit", and other words, it comes across as emotionalism, so I won't bother with a logical response to anything you said.

Seems like a cop out from someone who has no argument. Surely you have more than this, no?

If my response comes across to you as emotionalism, then I submit that your understanding of such an argument leaves something to be desired. It would seem either you are avoiding response or lack the chops to argue in this case. If it were simple disinterest, I would think you would have simply refrained from responding at all, so I must assume I hit a nerve... somewhere.

Oh, and if by "other words" you are referring to my Penis Act - I was attempting to inject a little juvenile humor into to conversation to underscore just how ridiculous and obviously ajar the gate to arbitrariness has been left. It behooves us all to learn to get beyond world and grammar choice where such choices do not obfuscate or otherwise impede the underlying argument and focus on the latter. You appear to be using my choice of words as an excuse for not addressing the valid points made. Your right, of course, but do not think you are fooling anyone.

 

[Sonny Tufts]

The interstate commerce clause doesn't grant any power to Congress to prosecute the sale, transport or distribution of any product in the United States, and the proof of that is the 18th Amendment, when the government was more honest then to admit that a constitutional amendment was required to prohibit the sale, manufacture and distribution of liquor.

Federal laws banning interstate transportation of certain things were upheld well before the 18th Amendment, which wasn't confined to the interstate transportation of liquor -- it prohibited the manufacture, sale, or transportation of liquor anywhere within the United States, regardless of whether interstate transportation was involved. Since this would obviously include intrastate activities an amendment was needed (the Commerce Clause had yet to be expansively interpreted as it was during the New Deal).

 

[FauxCapitalist]

Federal laws banning interstate transportation of certain things were upheld well before the 18th Amendment, which wasn't confined to the interstate transportation of liquor -- it prohibited the manufacture, sale, or transportation of liquor anywhere within the United States, regardless of whether interstate transportation was involved. Since this would obviously include intrastate activities an amendment was needed (the Commerce Clause had yet to be expansively interpreted as it was during the New Deal).

Yes, re: your statement about the 18th Amendment applying to the States as well.

You said "Federal laws banning interstate transportation of certain things were upheld well before the 18th Amendment". Which things did they ban? They could certainly ban the unlawful transport of military equipment, for example, which would be a legitimate application of its military powers.

But aside from those things, do you think those court decisions were legitimate?

McCulloch v. Maryland allowed the chartering of a mostly privately owned central bank, but it wasn't constitutional, so are you making an argument that if something was upheld so long ago, it's likely or is constitutional?

 

[Sonny Tufts]

You said "Federal laws banning interstate transportation of certain things were upheld well before the 18th Amendment". Which things did they ban? They could certainly ban the unlawful transport of military equipment, for example, which would be a legitimate application of its military powers.

Hoke v. U.S., 227 U.S. 308 (1913) upheld a federal statute prohibiting the interstate transportation of women for purposes of prostitution.

U.S. v. Popper, 93 Fed. 423 (N.D. Cal. 1899) upheld a federal statute prohibiting the transportation of contraceptives; the court noted, "The power to regulate commerce includes the power to declare what property or things may be the subject of commerce. Thus, in those cases in which it has been held that congress may lawfully prohibit the sale of intoxicating liquors to Indians in what is known as the "Indian Country," the power to enact such legislation is said to be derived from the authority to regulate commerce with the Indian tribes. U.S. v. Holliday, 3 Wall. 407, 18 L. Ed. 182; U.S. v. Forty-Three Gallons of Whisky, 93 U.S. 188, 23 L. Ed. 846.

Hippolite Egg Co. v. U.S., 220 U.S. 45 (1911) upheld a federal statute prohibiting the interstate transportation of adulterated foods. There are other examples.

McCulloch v. Maryland allowed the chartering of a mostly privately owned central bank, but it wasn't constitutional, so are you making an argument that if something was upheld so long ago, it's likely or is constitutional?

I'm saying that under our system of government the Supreme Court decides the constitutionality of legislation, subject to its being overruled by a constiotutional amendment or by a later decision of the Court itself.

 

[FauxCapitalist]

Seems like a cop out from someone who has no argument. Surely you have more than this, no?

If my response comes across to you as emotionalism, then I submit that your understanding of such an argument leaves something to be desired. It would seem either you are avoiding response or lack the chops to argue in this case. If it were simple disinterest, I would think you would have simply refrained from responding at all, so I must assume I hit a nerve... somewhere.

Oh, and if by "other words" you are referring to my Penis Act - I was attempting to inject a little juvenile humor into to conversation to underscore just how ridiculous and obviously ajar the gate to arbitrariness has been left. It behooves us all to learn to get beyond world and grammar choice where such choices do not obfuscate or otherwise impede the underlying argument and focus on the latter. You appear to be using my choice of words as an excuse for not addressing the valid points made. Your right, of course, but do not think you are fooling anyone.

Hoke v. U.S., 227 U.S. 308 (1913) upheld a federal statute prohibiting the interstate transportation of women for purposes of prostitution.

U.S. v. Popper, 93 Fed. 423 (N.D. Cal. 1899) upheld a federal statute prohibiting the transportation of contraceptives; the court noted, "The power to regulate commerce includes the power to declare what property or things may be the subject of commerce. Thus, in those cases in which it has been held that congress may lawfully prohibit the sale of intoxicating liquors to Indians in what is known as the "Indian Country," the power to enact such legislation is said to be derived from the authority to regulate commerce with the Indian tribes. U.S. v. Holliday, 3 Wall. 407, 18 L. Ed. 182; U.S. v. Forty-Three Gallons of Whisky, 93 U.S. 188, 23 L. Ed. 846.

Hippolite Egg Co. v. U.S., 220 U.S. 45 (1911) upheld a federal statute prohibiting the interstate transportation of adulterated foods. There are other examples.



I'm saying that under our system of government the Supreme Court decides the constitutionality of legislation, subject to its being overruled by a constiotutional amendment or by a later decision of the Court itself.

Thanks for those examples. I'd say that the first two cases are clearly unconstitutional. I'd say the third case is also unconstitutional, as it's still a state responsibility, but can see some arguing it's valid based on making commerce regular by prohibiting fraud leading to foreseeable harm.

This is why the commerce clause was too vaguely worded, and the Confederate Constitution tightened it up, and could've gone even further.

I'd say that under the system of government since Marbury v. Madison as precedent does the Supreme Court have the final say, absent a constitutional amendment, but not under the Constitution itself.

Jefferson's intent was that differences would be settled by the three independent branches exercising their constitutional powers, respectively.

In any case, the Constitution still allows Congress to limit the Supreme Court's hearing of cases outside its original jurisdiction, and as a result, Congress could reverse Supreme Court decisions on many issues and subsequently pass a law restricting the Supreme Court from hearing any cases on it. A big example would be federal funding for, or participation, in abortion, as the SC has no original jurisdiction over federal cases involving individual citizens and corporations.

 

[Sonny Tufts]

I'd say that under the system of government since Marbury v. Madison as precedent does the Supreme Court have the final say, absent a constitutional amendment, but not under the Constitution itself.

Jefferson's intent was that differences would be settled by the three independent branches exercising their constitutional powers, respectively.

Jefferson wasn't involved in drafting the Constitution, as he was living in Paris as Minister to France. The textual support for judicial review lies in the phrase "judicial power of the United States", which Article III grants to the federal courts. It's not a stretch to say that this judicial power includes the power to determine constitutional issues, and most of those involved in the drafting and ratification of the Constitution seemed to think so. See http://constitution.findlaw.com/article3/annotation13.html#f580.

 

[FauxCapitalist]

Jefferson wasn't involved in drafting the Constitution, as he was living in Paris as Minister to France. The textual support for judicial review lies in the phrase "judicial power of the United States", which Article III grants to the federal courts. It's not a stretch to say that this judicial power includes the power to determine constitutional issues, and most of those involved in the drafting and ratification of the Constitution seemed to think so. See http://constitution.findlaw.com/article3/annotation13.html#f580.

Thanks for that reference. For me, the text itself is what should serve as a primary guide, and intent only as a secondary source when the plain text may not be 100% obvious.

From Article III, Section 1, we have:

"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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

Where does it say there that the Supreme Court can strike down a law as unconstitutional? Indeed they have judicial power, and they can rule on a particular case, and that can be used as precedent with regard to similar circumstances, but from the text, I don't see any basis for striking down laws as unconstitutional.

Where do you see that power from the text, and do you regard Congress as having any limits to ban or regulate products and services under the commerce clause?

 

[Sonny Tufts]

Where does it say there that the Supreme Court can strike down a law as unconstitutional? Indeed they have judicial power, and they can rule on a particular case, and that can be used as precedent with regard to similar circumstances, but from the text, I don't see any basis for striking down laws as unconstitutional.

Where do you see that power from the text, and do you regard Congress as having any limits to ban or regulate products and services under the commerce clause?

Once you grant the judiciary the power to decide cases, it follows that it has the authority to determine the law applicable to a particular case. As Chief Justice Marshall put it in Marbury:

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.

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.

If, then, the Courts are to regard the Constitution, and the 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.

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.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure...

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

"No person," says the Constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

 

[FauxCapitalist]

Once you grant the judiciary the power to decide cases, it follows that it has the authority to determine the law applicable to a particular case. As Chief Justice Marshall put it in Marbury:

With jury nullification, the jury has the power to decide on the law and the facts, but in finding someone not guilty as a result of judging the law unjust, it doesn't rule the entire law unconstitutional or invalid, overall.

In the same way, the judiciary has no such power, which is what people are saying when they are taking exception with Marbury v. Madison's decision. As Michael Badnarik has said, the good news about that case is it said that anything repugnant to the Constitution is null and void, but the bad part is that the judiciary claimed for itself the power to strike down laws as unconstitutional.

You didn't say whether the interstate commerce clause has any limitations to it, so presumably Congress can make illegal any good and service it wants? That certainly wouldn't be fulfilling an interpretation of "making commerce regular".

And as for the Supreme Court striking down laws as unconstitutional, are you personally fine with that? That they can strike something down as unconstitutional just because they say so, and we should accept it?

 

[Sonny Tufts]

In the same way, the judiciary has no such power, which is what people are saying when they are taking exception with Marbury v. Madison's decision. As Michael Badnarik has said, the good news about that case is it said that anything repugnant to the Constitution is null and void, but the bad part is that the judiciary claimed for itself the power to strike down laws as unconstitutional.

That's what the judiciary is supposed to do. Take the Marbury case itself -- Marbury claimed that a federal statute gave SCOTUS jurisdiction to issue a writ of mandamus, but the Constitution says that the Court's original jurisdiction doesn't extend to Marbury's case. Which law is the Court to apply -- the statute or the Constitution? Obviously the latter, and once the Court says that the Constitution trumps the statute, it's equivalent to declaring the statute unconstitutional.

You didn't say whether the interstate commerce clause has any limitations to it, so presumably Congress can make illegal any good and service it wants? That certainly wouldn't be fulfilling an interpretation of "making commerce regular".

No, Congress can't declare anything it wants to illegal under the Commerce Clause -- see United States v. Lopez, 514 U.S. 549 (1995).

And as for the Supreme Court striking down laws as unconstitutional, are you personally fine with that? That they can strike something down as unconstitutional just because they say so, and we should accept it?

Who else is to determine whether legislation is consistent with the Constitution? If Congress or the Executive, then the Bill of Rights and other constitutional provisions would be meaningless as a check on legislative and executive power. And the people don't have to accept it. They can overturn a unpopular decision by amending the Constitution, which they've done on three occasions (the 11th, 13th, and 16th Amendments were all adopted in response to SCOTUS decisions).

 

[FauxCapitalist]

That's what the judiciary is supposed to do. Take the Marbury case itself -- Marbury claimed that a federal statute gave SCOTUS jurisdiction to issue a writ of mandamus, but the Constitution says that the Court's original jurisdiction doesn't extend to Marbury's case. Which law is the Court to apply -- the statute or the Constitution? Obviously the latter, and once the Court says that the Constitution trumps the statute, it's equivalent to declaring the statute unconstitutional.



No, Congress can't declare anything it wants to illegal under the Commerce Clause -- see United States v. Lopez, 514 U.S. 549 (1995).



Who else is to determine whether legislation is consistent with the Constitution? If Congress or the Executive, then the Bill of Rights and other constitutional provisions would be meaningless as a check on legislative and executive power. And the people don't have to accept it. They can overturn a unpopular decision by amending the Constitution, which they've done on three occasions (the 11th, 13th, and 16th Amendments were all adopted in response to SCOTUS decisions).

I agree with all you said in the first part, but would add that effectively declaring it unconstitutional is still a legal opinion, just like a jury's decision.

Madison v. Marbury was and still is so significant because the SC claimed a power it had never claimed before, of saying it was the final arbiter of what is constitutional, outside of a constitutional amendment.

The problem, that Jefferson also had, is that it thwarts the design of the Constitution, with Congress being made the superior branch, followed by the Executive and then the Judiciary, and the separation of powers, so that no branch, and especially not the least powerful branch, would have an overwhelming superior status over the other, which is what I see that happened since that decision.

Yes, Congress has the power to impeach the Justices, but it's not valid to do so just because of a judicial disagreement, unless it was really flagrant, like deliberately subverting the Constitution, as a violation of the Oath to uphold the Constitution.

As for who else is to determine whether legislation is consistent with the Constitution, this is what all three branches, along with the people, are supposed to do, in their various actions and interactions with each other -- this is what Jefferson advocated. So when John Adams signed the blatantly unconstitutional Alien and Sedition Acts passed by Congress, if the SC upheld it, that doesn't make it constitutional.

If they had ruled it unconstitutional, that would've put pressure onto the other two branches, and given support to the people in getting it pulled or superseded with a constitutional law.

As for the U.S. v Lopez case you cited, it seems as if you are going with the notion that the Constitution is whatever the Supreme Court says it is, so as long as the most recent decision says a particular thing, then that's what's constitutional for now. That decision was a 5-4 decision, and could've easily gone the other way.

 

[Sonny Tufts]

The problem, that Jefferson also had, is that it thwarts the design of the Constitution, with Congress being made the superior branch, followed by the Executive and then the Judiciary, and the separation of powers, so that no branch, and especially not the least powerful branch, would have an overwhelming superior status over the other, which is what I see that happened since that decision.

The judiciary has no power to enforce its own decisions, but must instead rely on the Executive branch to do so. It doesn't determine its own composition, so things like FDR's court-packing plan are possible. The judiciary has to get its operational funds from Congeress. The Justices are aware of all this, so they are reluctant to declare an act of Congress unconstitutional (the Court has done so only 165 times from 1789-2010, and a lot of those were during the New Deal).

As for the U.S. v Lopez case you cited, it seems as if you are going with the notion that the Constitution is whatever the Supreme Court says it is, so as long as the most recent decision says a particular thing, then that's what's constitutional for now.

Precisely. The Court determines what the Constitution means, subject to its being overruled by an amendment. It's like the famous remark from Hall of Famer Bill Klem, considered by some as the greatest umpire in baseball history, about whether a pitch was a ball or a strike: "It ain't nothin' until I call it."

 

[Pericles]

Here we go again. The Constitution and the BoR applied to the States via Article VI. The SCOTUS in Barron v Baltimore (1833) said the Constitution only applied to the FedGov. The 14A said the SCOTUS got it wrong.

Anyone who has even taken a cursory glance at the Anti- Federalist papers can clearly see that the main objection to the Constitution is that it would take precedence over state Constitutions (for those states that had them).

 

[FauxCapitalist]

The judiciary has no power to enforce its own decisions, but must instead rely on the Executive branch to do so. It doesn't determine its own composition, so things like FDR's court-packing plan are possible. The judiciary has to get its operational funds from Congeress. The Justices are aware of all this, so they are reluctant to declare an act of Congress unconstitutional (the Court has done so only 165 times from 1789-2010, and a lot of those were during the New Deal).



Precisely. The Court determines what the Constitution means, subject to its being overruled by an amendment. It's like the famous remark from Hall of Famer Bill Klem, considered by some as the greatest umpire in baseball history, about whether a pitch was a ball or a strike: "It ain't nothin' until I call it."

Thanks for all your comments. It seems we will agree to disagree about the constitutionality of the SC being able to actually strike down laws as unconstitutional, and that we should accept whatever the SC decides is constitutional until they decide otherwise, or by amendment.

In any case, yes, as President Andrew Jackson told the SC, that they made their decision, now let them enforce it, so the other two branches still could stand up, but I argue that it creates a dangerous situation, unlike if the SC only rendered its opinion overall, and made a decision in a particular case.

 

[FauxCapitalist]

Here we go again. The Constitution and the BoR applied to the States via Article VI. The SCOTUS in Barron v Baltimore (1833) said the Constitution only applied to the FedGov. The 14A said the SCOTUS got it wrong.

Anyone who has even taken a cursory glance at the Anti- Federalist papers can clearly see that the main objection to the Constitution is that it would take precedence over state Constitutions (for those states that had them).

I wouldn't say that the 14A said that the SCOTUS got it wrong. It changed the long-held understanding and application of the BoR. A case could be made, from the actual text itself, that it could have been incorporated against the States from its adoption, because only in the Preamble does it mention its intent, and preambles are not supposed to have any specific legal binding.

However, from a plain reading of the BoR, there's no way you can incorporate the First Amendment against the States when it specifically mentions Congress, and the fact that not all of the Amendments have been incorporated against the States shows that the 14A didn't immediately go and do that.