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Debates Forum

Debates Forum

  1. 14 Feb '16 13:34 / 1 edit
    There are those within the Article V movement that would like to restrict the power of SCOTUS. Like all other branches in the Federal government, they have assumed too much authority and answer to on one.

    Case in point, in Marbury v. Madison, the U.S. Supreme Court held that a court can declare an act of Congress void when it conflicts with the Constitution, according to the Legal Information Institute. The decision mades the Court the final arbiter of the constitutionality of congressional legislation.

    Thomas Jefferson was furious with the Marbury decision. In a letter to Abigail Adams he wrote, "The Constitution meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

    He later wrote, "To consider judges as the ulitimate arbiters of all constitutional questions is 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.....and their power 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."

    This is what Lincoln said of the Dred Scott decision that denied blacks equal rights under the law.

    "I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne that could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decision to political purposes."

    Just think, the nation was at the mercy of 5 men to overturn the inequality of blacks imposed by SCOTUS. Luckily it happened but only due to political expediency. If racists had continued to rule the day, SCOTUS would have been prone to the political leanings of their power base and not have overturned it.

    Now turn the page to Woodrow Wilson, who held the opposite view of SCOTUS.

    "The character of the process of constitutional adaption depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has course been judicial interpretations -- the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provision of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaption has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity"


    So, on the one hand, you have men like Jefferson and Lincoln who hold the view that the courts now have too much power. An oligarchy of 5 justices is all that is needed who are prone to the same vices of seeking money and political power as everyone else is prone to having. Then you have President Wilson and the rest of his Prog followers that are now in power who essentially advocate is appointing "wise" and "good" men to the post so that they can have a 5 man never ending perpetual constitutional convention.

    It seems to me the only way to fix this, if at all, is the Article V movement.
  2. 14 Feb '16 15:00
    Will the Article V movement also cure cancer and end world hunger?
  3. 14 Feb '16 16:18
    Originally posted by whodey
    There are those within the Article V movement that would like to restrict the power of SCOTUS. Like all other branches in the Federal government, they have assumed too much authority and answer to on one.

    Case in point, in Marbury v. Madison, the U.S. Supreme Court held that a court can declare an act of Congress void when it conflicts with the Constituti ...[text shortened]... l convention.

    It seems to me the only way to fix this, if at all, is the Article V movement.
    How should the US federal constitutionality of congressional acts passed by federal and state legislatures be ultimately decided?
  4. 14 Feb '16 16:59
    Originally posted by KazetNagorra
    Will the Article V movement also cure cancer and end world hunger?
    Don't be ridiculous!
  5. 14 Feb '16 17:00
    Originally posted by normbenign
    Don't be ridiculous!
    You read my mind.
  6. 14 Feb '16 17:00
    Originally posted by JS357
    How should the US federal constitutionality of congressional acts passed by federal and state legislatures be ultimately decided?
    State courts should be checks on State legislatures, and the Federal Supreme court, and appeals courts checks on Federal actions.
  7. 14 Feb '16 17:56 / 1 edit
    Originally posted by normbenign
    State courts should be checks on State legislatures, and the Federal Supreme court, and appeals courts checks on Federal actions.
    Your proposed approach, taken at face value, doesn't affect the SCOTUS power to be the ultimate decider on the federal constitutionality of US federal legislative acts. It only seems to remove SCOTUS from deciding the federal constitutionality of a state legislature's acts. This seems on its face to be unsatisfactory to those who object to Marbury v Madison.

    Edit: I respect you more for responding than I do the non-responders.They seem only to find fault, without a clue as to remedies.

    Who should decide whether a state's legislative act that is supported by the state's supreme court violates the federal constitution? For that matter, who should decide whether a state's constitution violates the federal constitution?

    This proposal leaves -- or creates -- some holes.
  8. 14 Feb '16 18:09
    Originally posted by JS357
    Your proposed approach, taken at face value, doesn't affect the SCOTUS power to be the ultimate decider on the federal constitutionality of US federal legislative acts. It only seems to remove SCOTUS from deciding the federal constitutionality of a state legislature's acts. This seems on its face to be unsatisfactory to those who object to Marbury v Madison.
    ...[text shortened]... titution violates the federal constitution?

    This proposal leaves -- or creates -- some holes.
    The "holes" only appear to be, in that if a statute is found to be unconstitutional at a State level, there is no reason it can't be appealed to a Federal court, and the law repealed at all levels.

    Many State laws specifically only apply to the State in question, for example "shall issue CCW law, which allow concealed weapons to be carried in that particular State, and any other with reciprocity agreements.

    That is fine with me. I'd rather not have Congress and Federal agencies in charge of what ought to be local decisions.
  9. 14 Feb '16 18:14
    Originally posted by normbenign
    The "holes" only appear to be, in that if a statute is found to be unconstitutional at a State level, there is no reason it can't be appealed to a Federal court, and the law repealed at all levels.

    Many State laws specifically only apply to the State in question, for example "shall issue CCW law, which allow concealed weapons to be carried in that par ...[text shortened]... I'd rather not have Congress and Federal agencies in charge of what ought to be local decisions.
    It's not clear to me that you would change anything.

    Would legislative acts that "...specifically only apply to the State in question, for example..." be exempt from federal review for violation of federal law and/or the federal constitution?
  10. 14 Feb '16 18:25
    Originally posted by JS357
    It's not clear to me that you would change anything.

    Would legislative acts that "...specifically only apply to the State in question, for example..." be exempt from federal review for violation of federal law and/or the federal constitution?
    It is quite common that people just bypass State courts, when they have issues which may be of national significance. Of course, some of this is attorney induced, as in a contingency situation, the federal court may impose a larger settlement than a State court.

    I still think that as long as a local or State court has jurisdiction, the Federal courts should leave matters in their hands. That goes to the motives of the attorneys in the case, and how they view their chances in various venues. The matter of judge and jury shopping comes into play here, where depending on the case, the attorney believes the State or Federal option is preferable to him and his client.
  11. 14 Feb '16 18:41 / 2 edits
    Originally posted by normbenign
    It is quite common that people just bypass State courts, when they have issues which may be of national significance. Of course, some of this is attorney induced, as in a contingency situation, the federal court may impose a larger settlement than a State court.

    I still think that as long as a local or State court has jurisdiction, the Federal courts ...[text shortened]... the case, the attorney believes the State or Federal option is preferable to him and his client.
    I don't see the changes you would make.

    Edit: I mean, changes that address the OP.
  12. Subscriber no1marauder
    It's Nice to Be Nice
    14 Feb '16 18:48
    Originally posted by whodey
    There are those within the Article V movement that would like to restrict the power of SCOTUS. Like all other branches in the Federal government, they have assumed too much authority and answer to on one.

    Case in point, in Marbury v. Madison, the U.S. Supreme Court held that a court can declare an act of Congress void when it conflicts with the Constituti ...[text shortened]... l convention.

    It seems to me the only way to fix this, if at all, is the Article V movement.
    The vast majority of Framers (Jefferson was not at the Constitutional Convention) supported judicial review. Hamilton gave a ringing endorsement of it in Federalist 78. Courts had been applying the doctrine at State level for decades; in Massachusetts:

    And it was a 1783 judicial decision, interpreting the wording of the 1780 constitution, that brought slavery to an end in Massachusetts.

    http://slavenorth.com/massemancip.htm

    Marbury v. Madison was decided in 1803 in a decision written by John Marshall, a major figure at the Virginia Constitutional Ratification Convention and a close protege of James Madison. So it seems right wing fanatics like yourself aren't merely interested in overthrowing the Progressive reforms of 100 years ago or so, but of scrapping the Constitutional system altogether. There is no sense in having a Constitution if its provisions can be definitively interpreted by the Legislative and/or Executive Branch of either the Federal or State governments; that would leave it as a mere advisory scrap of paper.
  13. 14 Feb '16 18:50
    Originally posted by no1marauder
    The vast majority of Framers (Jefferson was not at the Constitutional Convention) supported judicial review. Hamilton gave a ringing endorsement of it in Federalist 78. Courts had been applying the doctrine at State level for decades; in Massachusetts:

    And it was a 1783 judicial decision, interpreting the wording of the 1780 constitution, that brought ...[text shortened]... either the Federal or State governments; that would leave it as a mere advisory scrap of paper.
    ...whereas it is currently an advisory scrap of paper to a 9-man panel of indirectly elected politicians.
  14. Subscriber no1marauder
    It's Nice to Be Nice
    14 Feb '16 18:51
    Originally posted by normbenign
    It is quite common that people just bypass State courts, when they have issues which may be of national significance. Of course, some of this is attorney induced, as in a contingency situation, the federal court may impose a larger settlement than a State court.

    I still think that as long as a local or State court has jurisdiction, the Federal courts ...[text shortened]... the case, the attorney believes the State or Federal option is preferable to him and his client.
    You, as usual, don't know what you are talking about.

    Federal Courts only have jurisdiction over matters that the Constitution or the laws passed by the Congress gives them.
  15. 14 Feb '16 18:54
    Originally posted by KazetNagorra
    ...whereas it is currently an advisory scrap of paper to a 9-man panel of indirectly elected politicians.
    Do you have a viable alternative to Marbury v Madison in mind?