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The Supreme Court most certainly did usurp the power of judical review regarding what is Constitutional.
And I am now going to repost most of what I stated in a prior post (#49) in this thread.
"Granting the Supreme Court the power of judicial review is not in the Constitution. Moreover, it's not in any document that has any legal authority, anywhere. The Supreme Court usurped that power without any legal authority to do so whatsoever.
The States approved the Constitution. The States should have decided the issue of Judicial review, and they still should decide it.
Moreover, Congress clearly was granted the power to make and pass laws. There is absolutely no reason to think that the Supreme Court has a better understanding of what is Constitutional than Congress itself, especially given the Supreme Court's abysmal record of overturning it's own decisions.
Further, the Constitution provides for three separate but equal branches of Government. The Founding Fathers never intended for one branch to have final power over what is or is not Constitutional. And as I pointed out in an earlier post, that means the 10th Amendment establishes who has the power to decide that issue. To wit: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Take another look at Article III, secs. 1 & 2. Section 1 vests "the judicial power of the United States" in the Supreme Court. Section 2 states "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."
Judicial review is decided in the Constitution--it is the power of the judiciary. Congress makes and passes laws, but the judicial power applies "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States," etc. The judicial power is a check on Congress' power to make and pass laws.
Quote:
Originally Posted by Terryj
Those who drafted the Constitution had a real concern of the Judicial Branch and of the potential problem it could bring IF it sided with either of the other two branches of government:
In Federalist No. 78, Alexander Hamilton wrote, “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment. … Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In Federalist No. 81, Hamilton declared, “There is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution. … The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Yet this non-existent “spirit” is the essence of the so-called “living constitution,” as amended by judicial diktat rather than its prescribed method in Article V.
It seems that the fears the founding fathers had about a despotic judicial system were not unfounded.
Your quotation of Federalist No. 81 twists the meaning of Hamilton's words. He clearly states that "I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."
And then:
"It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,[SIZE=-2]2[/SIZE] and the relations which will subsist between these and the former."
Quote:
Originally Posted by Wudge
Exactly, 5-4 Supreme Court rulings have basically taken the place of Constitutional Amendments. For the author of a proposal to get what they want no longer requires that the States ratify an Amendment. Instead, all they need is 5 Justices to lean their way.
It's a Constitutional travesty.
The Supreme Court gets tough cases and the Justices are divided on how to resolve them. That does not mean that the Court should not decide cases. In fact, the system is designed for the Court to render those decisions.
Take another look at Article III, secs. 1 & 2. Section 1 vests "the judicial power of the United States" in the Supreme Court. Section 2 states "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."
Judicial review is decided in the Constitution--it is the power of the judiciary. Congress makes and passes laws, but the judicial power applies "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States," etc. The judicial power is a check on Congress' power to make and pass laws.
SNIP
You are reading what is not there. For there is no enumeration whatsoever of your allegation that judicial power encompasses judicial review and final say as to what is and is not Constitutional, or that such power was vested or was meant to be vested with the Supreme Court.
What is super clear is that the Founding Fathers intended to create three separate but equal branches of government. And it's impossible to have three separate but equal branches of government when one branch has final say (approval) over whether laws passed by Congress are or are not Constitutional. Let me repeat: that is impossible. Do you really believe that creating that impossible scenario was the wish or the intent of the Founding Fathers?
What is also super clear is that the Founding Fathers had a purpose when they articulated the 10th Amendment. And that in detailing that purpose, they expected that any such ambiguities to be resolved by the States or We, the people.
(Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.")
You are reading what is not there. For there is no enumeration whatsoever of your allegation that judicial power encompasses judicial review and final say as to what is and is not Constitutional, or that such power was vested or was meant to be vested with the Supreme Court.
What is super clear is that the Founding Fathers intended to create three separate but equal branches of government. And it's impossible to have three separate but equal branches of government when one branch has final say (approval) over whether laws passed by Congress are or are not Constitutional. Let me repeat: that is impossible. Do you really believe that creating that impossible scenario was the wish or the intent of the Founding Fathers?
What is also super clear is that the Founding Fathers had a purpose when they articulated the 10th Amendment. And that in detailing that purpose, they expected that any such ambiguities to be resolved by the States or We, the people.
(Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.")
The judicial power extends to all cases and controversies arising under the Constitution or other sources of US law. The judicial power belongs to the judicial branch. Hence, the power of the Supreme Court extends to cases and controversies arising under the Constitution or other sources of US law. That is not ambiguous.
Various doctrines with constitutional foundations (standing, political question, mootness, etc.) and judicial canons and principles limit the judiciary's oversight of Congress and the Executive branch.
The judicial power is specifically vested in the federal judiciary by the Constitution, so the 10th Amendment is irrelevant.
The judiciary also has no real police power, so its power over the other branches is further limited to shining the light of the law upon them.
The judicial power extends to all cases and controversies arising under the Constitution or other sources of US law. The judicial power belongs to the judicial branch. Hence, the power of the Supreme Court extends to cases and controversies arising under the Constitution or other sources of US law. That is not ambiguous.
Various doctrines with constitutional foundations (standing, political question, mootness, etc.) and judicial canons and principles limit the judiciary's oversight of Congress and the Executive branch.
The judicial power is specifically vested in the federal judiciary by the Constitution, so the 10th Amendment is irrelevant.
The judiciary also has no real police power, so its power over the other branches is further limited to shining the light of the law upon them.
The "judicial power" you refer to includes the Founding Fathers allegedly (in your mind) and intentionally vesting the Supreme Court with the "power" of final review and approval without the Founding Fathers having ever explicitly enumerated that power within the Constitution itself.
It is far beyond well known that the Founding Fathers intended to and believed they had enumerated but eighteen powers in the Constitution that were powers that We, the people, granted to the Federal government upon ratification -- eighteen powers, not nineteen powers. And yes, all such granted powers were indeed supposed to have been clearly enumerated within the Constitution itself, and eighteen powers were indeed so spelled out.
If the Federal government wanted to have additional power, it was required to ask for and gain approval for any additional power via a ratified Constitutional Amendment.
Moreover, as I previously pointed out, the power of review and approval of Constitutional determination that the Supreme Court granted to itself In Marbury v. Madison necessarily places the Supreme Court above Congress, and that simply cannot exist in a government that was clearly set up with the intention that there would be three separate, but equal, branches of government, which, like enumeration, was absolutely was the intent of the Founding Fathers.
You can argue, as you have done, that the Constitution implicitly vested this final review and approval power with the Supreme Court, but that argument cannot reasonably overcome the clear intent of the Founding Fathers to grant but eighteen explicitly stated powers to the Federal government inside and across a construct of three separate, but equal, government branches. This truth is undeniable and forecloses on the possibility that the Founding Fathers intended to implicitly vest the Supreme Court with the final review and approval power of Constitutional determination.
The "judicial power" you refer to includes the Founding Fathers allegedly (in your mind) and intentionally vesting the Supreme Court with the "power" of final review and approval without the Founding Fathers having ever explicitly enumerated that power within the Constitution itself.
Judicial power is not "allegedly," but actually vested in the Supreme Court. This power was understood to include the ability to review statutes for their constitutionality (see Federalist No. 78). The idea that courts interpret law came to the United States from the English common law, which was well-known when the Constitution was drafted and ratified.
Quote:
Originally Posted by Wudge
It is far beyond well known that the Founding Fathers intended to and believed they had enumerated but eighteen powers in the Constitution that were powers that We, the people, granted to the Federal government upon ratification -- eighteen powers, not nineteen powers. And yes, all such granted powers were indeed supposed to have been clearly enumerated within the Constitution itself, and eighteen powers were indeed so spelled out.
The powers of Article I, section 8 are the powers of the Legislative Branch (i.e., Congress). The powers of the judiciary are separate, and are identified in Article III--namely, the judicial power of the United States.
Quote:
Originally Posted by Wudge
If the Federal government wanted to have additional power, it was required to ask for and gain approval for any additional power via a ratified Constitutional Amendment.
Judicial power is identified in Article III.
Quote:
Originally Posted by Wudge
Moreover, as I previously pointed out, the power of review and approval of Constitutional determination that the Supreme Court granted to itself In Marbury v. Madison necessarily places the Supreme Court above Congress, and that simply cannot exist in a government that was clearly set up with the intention that there would be three separate, but equal, branches of government, which, like enumeration, was absolutely was the intent of the Founding Fathers.
Marbury explained the power of judicial review, which comes from Article III and existed before that case. You are making an anti-federalist argument about the power of the courts. The anti-federalists lost when the Constitution was ratified.
You can argue, as you have done, that the Constitution implicitly vested this final review and approval power with the Supreme Court, but that argument cannot reasonably overcome the clear intent of the Founding Fathers to grant but eighteen explicitly stated powers to the Federal government inside and across a construct of three separate, but equal, government branches. This truth is undeniable and forecloses on the possibility that the Founding Fathers intended to implicitly vest the Supreme Court with the final review and approval power of Constitutional determination.
You are imagining that Article I, section 8 applies to the judiciary or the executive. It is an enumeration only of Congress' powers. Article II provides the President with the Executive Power. Article III vests the judicial power in the Supreme Court (and inferior courts). See Federalist No. 78, again.
Judicial power is not "allegedly," but actually vested in the Supreme Court. This power was understood to include the ability to review statutes for their constitutionality (see Federalist No. 78). The idea that courts interpret law came to the United States from the English common law, which was well-known when the Constitution was drafted and ratified.
The powers of Article I, section 8 are the powers of the Legislative Branch (i.e., Congress). The powers of the judiciary are separate, and are identified in Article III--namely, the judicial power of the United States.
Judicial power is identified in Article III.
Marbury explained the power of judicial review, which comes from Article III and existed before that case. You are making an anti-federalist argument about the power of the courts. The anti-federalists lost when the Constitution was ratified.
You are imagining that Article I, section 8 applies to the judiciary or the executive. It is an enumeration only of Congress' powers. Article II provides the President with the Executive Power. Article III vests the judicial power in the Supreme Court (and inferior courts). See Federalist No. 78, again.
I don't see you denying that the Founding Fathers intended to enumerate all powers granted to the Federal government under the Constitution. And nowhere within Article III (or anywhere else in the Constitution) did the Founding Fathers enumerate or, in any way, explicitly state that as regards Constitution determination, the power of final review and approval was granted to the Supreme Court. Which in turn, would have meant that the Founding Fathers placed the Supreme Court above Congress.
For that equation could not then be closed, given that it is undeniable that the Founding Fathers intended for there to be three separate, but equal, branches of government.
The 10th Amendment clearly defines the resolution pathway; i.e., Thepowers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I don't see you denying that the Founding Fathers intended to enumerate all powers granted to the Federal government under the Constitution. And nowhere within Article III (or anywhere else in the Constitution) did the Founding Fathers enumerate or, in any way, explicitly state that as regards Constitution determination, the power of final review and approval was granted to the Supreme Court. Which in turn, would have meant that the Founding Fathers placed the Supreme Court above Congress.
For that equation could not then be closed, given that it is undeniable that the Founding Fathers intended for there to be three separate, but equal, branches of government.
The 10th Amendment clearly defines the resolution pathway; i.e., Thepowers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I am denying that Article I, section 8--the enumerated powers--applies to the judiciary. The framers gave the Supreme Court "the judicial power of the United States." Judicial power had a meaning, coming from the English judicial system. The federalist papers reflect the concept of judicial review. The delegates to the Constitutional Convention discussed judicial review and understood it to be a power of the judiciary. Judicial review is the province of the courts. Legislation is the province of Congress. The Supreme Court is not "above" Congress, but judicial review is a check on the power of Congress.
I am denying that Article I, section 8--the enumerated powers--applies to the judiciary. The framers gave the Supreme Court "the judicial power of the United States." Judicial power had a meaning, coming from the English judicial system. The federalist papers reflect the concept of judicial review. The delegates to the Constitutional Convention discussed judicial review and understood it to be a power of the judiciary. Judicial review is the province of the courts. Legislation is the province of Congress. The Supreme Court is not "above" Congress, but judicial review is a check on the power of Congress.
The Supreme Court is perched above Congress, because the Supreme Court gave themselves the rank of final approval on laws that Congress passes.
As to whether laws are Constitutional, there is no debate between Congress and the Supreme Court, nor is there a duo branch committee or a duo branch ruling, which would amount to a check and balance. Instead, there is nothing but a ruling, as in a ruling from the "ruling branch". And due to their pure usurpation of power, that ruling branch is now the Supreme Court.
It is without question true that the Founding Fathers never intended to create a ruling branch within our government. The Founding fathers spoke of and intended to create three separate but equal branches of government, nothing more. Moreover, they clearly intended for all powers to be enumerated, and there is absolutely nothing anywhere in the Constitution that enumerates or explicitly states that the Supreme Court was granted the awesome power of Constitutional determination by the Founding Fathers.
And since you took the bait, now let me tell you why the eighteen enumerated powers in Article 1, section 8 are not only relevant but incredibly important as regards the intent of the Founding Fathers. It's because of a singular granted final power within the eighteen clearly enumerated powers that is the lynchpin for all of the eighteen powers. This lynchpin power gives Congress the following explicit power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The Founding Fathers provided no mention or caveat whatsoever that noted or warned that the laws passed by Congress were not necessarily final. Nor is there any note or any mention whatsoever by the Founding Fathers that they intended for those laws to be ruled upon, in any way, by the Supreme Court, much less any mention or warning that they could be rejected by the Supreme Court as being unconstitutional, because that was the way they intended to construct the Government. The reason that warning is not there is because that was not the way they intended to construct the government. Rather, they intended to create three separate, but equal, branches of government. Period.
The Supreme Court is perched above Congress, because the Supreme Court gave themselves the rank of final approval on laws that Congress passes.
As to whether laws are Constitutional, there is no debate between Congress and the Supreme Court, nor is there a duo branch committee or a duo branch ruling, which would amount to a check and balance. Instead, there is nothing but a ruling, as in a ruling from the "ruling branch". And due to their pure usurpation of power, that ruling branch is now the Supreme Court.
It is without question true that the Founding Fathers never intended to create a ruling branch within our government. The Founding fathers spoke of and intended to create three separate but equal branches of government, nothing more. Moreover, they clearly intended for all powers to be enumerated, and there is absolutely nothing anywhere in the Constitution that enumerates or explicitly states that the Supreme Court was granted the awesome power of Constitutional determination by the Founding Fathers.
And since you took the bait, now let me tell you why the eighteen enumerated powers in Article 1, section 8 are not only relevant but incredibly important as regards the intent of the Founding Fathers. It's because of a singular granted final power within the eighteen clearly enumerated powers that is the lynchpin for all of the eighteen powers. This lynchpin power gives Congress the following explicit power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The Founding Fathers provided no mention or caveat whatsoever that noted or warned that the laws passed by Congress were not necessarily final. Nor is there any note or any mention whatsoever by the Founding Fathers that they intended for those laws to be ruled upon, in any way, by the Supreme Court, much less any mention or warning that they could be rejected by the Supreme Court as being unconstitutional, because that was the way they intended to construct the Government. The reason that warning is not there is because that was not the way they intended to construct the government. Rather, they intended to create three separate, but equal, branches of government. Period.
Just because you keep repeating it does not make it true. Read the Federalist Papers, read about the constitutional convention, read about the British legal system, read the link I provided on judicial review before Marbury. You would learn about how our Constitution and courts function.
Just because you keep repeating it does not make it true. Read the Federalist Papers, read about the constitutional convention, read about the British legal system, read the link I provided on judicial review before Marbury. You would learn about how our Constitution and courts function.
(Chuckle)
As if I did not know how our Constitution and Courts function. And do you really think I have not read and studied the Federalist papers? Watch your assumptions, closely.
You hold that the Founding Fathers implicitly (via but inference) granted the power of Constitutional determination to the Supreme Court. I've provided undeniable facts that work incredibly against your inferred conclusion. But an inference is valid when and only when the premises force the conclusion. To put it another way, an inference is valid when an inference necessarily follows from the premises.
If you think you can prove your inferred position with valid premises that force a 24K gold deduction-based conclusion, go ahead and lay out the valid major and minor premises that force that conclusion.
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