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Where in the Constitution is it stated that the Supreme Court is the arbitrator of the Constitution?
Where in the Constitution is it stated that the Supreme Court has the power of judicial review?
(The 10th Amendment is part of the Constitution.)
You are quite accurate about all of the above.
Marbury v. Madison in 1803, established the Supreme Court's right to review legislation and determine its constitutionality. The power to review legislation is inferential and based on the following:
1. The Constitution is the highest law of the land.
2. The function of the courts is and has always been to interpret the law.
3. Therefore, the courts have the right to interpret the Constitution, or the highest law of the land.
While the Tenth Amendment is part of the Constitution it has to be read carefully. It states that all powers not surrendered to the federal government are retained by the states or the people. Conservatives have tried to use this to argue that the federal government asserts too much power.
The problem is that a power is not reserved to the states if it involves things like regulating interstate commerce, imposing a tax, or spending/not spending money in a particular state. These are all powers expressly granted to Congress.
Last edited by markg91359; 03-28-2014 at 08:25 AM..
The problem is that a power is not reserved to the states if it involves things like regulating
interstate commerce, imposing a tax, or spending/not spending money in a particular state.
These are all powers expressly granted to Congress.
And the next level of problem is contextual.
HOW these things (like regulating interstate commerce) are different in a 21st Century world
in comparison to how they were experienced in the waning days of an 18th Century world.
The logical progression inherent to accepting this realty scares the bejeebus out of the
states rights folks because almost nothing is as simple as it once may have been.
NOTHING is as simple as their world view needs to pretend it remains.
Marbury v. Madison in 1803, established the Supreme Court's right to review legislation and determine its constitutionality. The power to review legislation is inferential and based on the following:
1. The Constitution is the highest law of the land.
2. The function of the courts is and has always been to interpret the law.
3. Therefore, the courts have the right to interpret the Constitution, or the highest law of the land.
While the Tenth Amendment is part of the Constitution it has to be read carefully. It states that all powers no t surrendered to the federal government are retained by the states or the people. Conservatives have tried to use this to argue that the federal government asserts too much power.
The problem is that a power is not reserved to the states if it involves things like regulating interstate commerce, imposing a tax, or spending/not spending money in a particular state. These are all powers expressly granted to Congress.
Premise #1 is true.
Premise #2 is false.
Ergo, your conclusion is not valid.
Indeed, the Constitution is the highest law of the land. It granted 18 enumerated powers to the government (Article 1. Section 8). If the government wanted additional power, it needed to obtain the wished for power via a Constitutional Amendment (revise the Constitution).
The Constitution did not enumerate the power of Judicial review to the Supreme Court. The Supreme Court recognized this truth, which is why the Supreme Court found it necessary to so self proclaim and usurp that power in Marbury v. Madison.
Indeed, the Constitution is the highest law of the land. It granted 18 enumerated powers to the government (Article 1. Section 8). If the government wanted additional power, it needed to obtain the wished for power via a Constitutional Amendment (revise the Constitution).
The Constitution did not enumerate the power of Judicial review to the Supreme Court. The Supreme Court recognized this truth, which is why the Supreme Court found it necessary to so self proclaim and usurp that power in Marbury v. Madison.
Premise 2 is false? Do you know anything at all about how the legal system and courts function?
Exactly what do you think courts do? Courts have always interpreted the law. Indeed if they didn't, there would be no need for judges at all.
What I have just quoted you is the same set of premises used by Justice John Marshall in Marbury v. Madison.
I don't mind discussing the Constitution, but its pretty useless doing it with people who don't understand simple things like the fact that courts interpret law.
Premise 2 is false? Do you know anything at all about how the legal system and courts function?
Exactly what do you think courts do? Courts have always interpreted the law. Indeed if they didn't, there would be no need for judges at all.
What I have just quoted you is the same set of premises used by Justice John Marshall in Marbury v. Madison.
I don't mind discussing the Constitution, but its pretty useless doing it with people who don't understand simple things like the fact that courts interpret law.
If the Supreme Court was vested with the power of Judicial review via the Constitution, then the Justices could have simpy referred to it instead of self-proclaiming such to be the case and usurping the power in Marbury v. Madison. Of course, the Justices did not reference any such clause because it does not exist. Nor is Judicial review one of the eightteen enumerated powers in Article 1, Section 8, nor is it cited anywhere else in the Constitution.
If the Supreme Court was vested with the power of Judicial review via the Constitution, then the Justices could have simpy referred to it instead of self-proclaiming such to be the case and usurping the power in Marbury v. Madison. Of course, the Justices did not reference any such clause because it does not exist. Nor is Judicial review one of the eightteen enumerated powers in Article 1, Section 8, nor is it cited anywhere else in the Constitution.
HTH
That's a totally different point than trying to claim that Premise 2 is flawed and the courts don't interpret the law.
If the Constitution is the Supreme Law of the Land and if courts have the power to interpret the law it follows that the Courts can interpret the Constitution as well.
It doesn't need to be directly in the Constitution. Its inferential.
Just out of curiosity, if the Supreme Court doesn't have the power to interpret the Constitution than who do you think should?
That's a totally different point than trying to claim that Premise 2 is flawed and the courts don't interpret the law.
If the Constitution is the Supreme Law of the Land and if courts have the power to interpret the law it follows that the Courts can interpret the Constitution as well.
It doesn't need to be directly in the Constitution. Its inferential.
Just out of curiosity, if the Supreme Court doesn't have the power to interpret the Constitution than who do you think should?
What is the source document for this mythical inferred power?
Is this mythical inferred power referred to anywhere within the Constitution? If so, where?
Was the Constitutional not the vehicle whereby We, the people, granted enumerated powers to the government?
What other legal authority, anywhere, is a valid source upon which a person can proclaim they have mythical powers not enumerated in the Constitution?
What is the source document for this mythical inferred power?
Is this mythical inferred power referred to anywhere within the Constitution? If so, where?
Was the Constitutional not the vehicle whereby We, the people, granted enumerated powers to the government?
What other legal authority, anywhere, is a valid source upon which a person can proclaim they have mythical powers not enumerated in the Constitution?
Its in the document in the sense that its law and everyone at the time knew that courts interpreted the law. Perhaps, it was considered so certain that a need was not felt to put it in writing.
Be that as it may, you still haven't answered the all important question that if the court's don't interpret the Constitution than who do you think should?
Its in the document in the sense that its law and everyone at the time knew that courts interpreted the law. Perhaps, it was considered so certain that a need was not felt to put it in writing.
Be that as it may, you still haven't answered the all important question that if the court's don't interpret the Constitution than who do you think should?
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.
And as regards "Perhaps", that is beyond a pathetically hollow argument.
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.
The constitution is a god given right that has no equal on this earth.
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