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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.
I can tell by your argument that you are unfamiliar with the Federalist Papers, the arguments of the delegates, British legal principles, and the Constitution.
The judicial power extends to all Cases and Controversies arising under the Constitution. That is not an inference, but the language of Article III. The meaning is that the judiciary will decide cases, including those involving constitutional questions.
The judicial power extends to all Cases and Controversies arising under the Constitution. That is not an inference, but the language of Article III. The meaning is that the judiciary will decide cases, including those involving constitutional questions.
Moderator cut: rude
In the meantime: where in the Constitution is the Supreme Court "explicitly' granted the "power" of Constitutional determination? If it is not "explicitly" stated -- and it is not -- then out of logical necessity your position must derive from what you believe to be but "implicit" (suggested in your mind) in the Constitution. In other words, it is but "implied" (in your mind), and from that you then "infer" that to be true.
Moderator cut: rude
HTH
Last edited by Oldhag1; 04-18-2014 at 08:58 AM..
Reason: All posts should be civil, intellectual contributions. No sarcasm.
In the meantime: where in the Constitution is the Supreme Court "explicitly' granted the "power" of Constitutional determination? If it is not "explicitly" stated -- and it is not -- then out of logical necessity your position must derive from what you believe to be but "implicit" (suggested in your mind) in the Constitution. In other words, it is but "implied" (in your mind), and from that you then "infer" that to be true.
Moderator cut: rude
HTH
I have repeatedly indicated that judicial review comes from Article III, sections 1 & 2. The language "arising under the Constitution" is about as clear and explicit as it gets.
I have repeatedly indicated that judicial review comes from Article III, sections 1 & 2. The language "arising under the Constitution" is about as clear and explicit as it gets.
Judicial review of a law is necessary, it prevents unconstitutional laws from becoming law. This, however, in no ways allows a Federal Judge to interpret the Constitution, a law is either constitutional or it is not "as arising under the Constitution." In this country today we have far to many Federal Judges enacting laws from the bench in which they do not have the power to do so, under the Constitution. This brings up a delima, how can a Federal Judge who has taken an oath to protect and defend the Constitution and then on the other hand violate this oath by "personal interpretation" of the Constitution. So how can one uphold the Constitution and then choose to interpret it different than was written?
Judicial review of a law is necessary, it prevents unconstitutional laws from becoming law. This, however, in no ways allows a Federal Judge to interpret the Constitution, a law is either constitutional or it is not "as arising under the Constitution." In this country today we have far to many Federal Judges enacting laws from the bench in which they do not have the power to do so, under the Constitution. This brings up a delima, how can a Federal Judge who has taken an oath to protect and defend the Constitution and then on the other hand violate this oath by "personal interpretation" of the Constitution. So how can one uphold the Constitution and then choose to interpret it different than was written?
In the words of Chief Justice Marshall, "it is a Constitution that we are expounding." Judges have to interpret the document. Terms like "commerce amongst the States," "necessary and proper," and "arms" need to be defined in order to determine whether a law passes Constitutional scrutiny.
There is a jurisprudential system that ensures that judges can't "go rogue." Litigants have the right of appeal, ultimately to the Supreme Court. The Justices are appointed by the President and confirmed by the Senate. Precedent is binding on lower court judges.
What laws do you think federal judges are legislating?
I have repeatedly indicated that judicial review comes from Article III, sections 1 & 2. The language "arising under the Constitution" is about as clear and explicit as it gets.
Nowhere in the Constitution is it stated that the Supreme Court was granted or has the power of judicial review. Likewise, nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination. Infer and/or adduce as you will, but there is absolutely nothing "explicit".
What is "explicit" is the 10th Amendment: "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.
Now, this is my getaway post, and I feel that you have created and left a dangling participle of sorts that I want to address as best I can without knowing specifically what you had in mind.
Twice in this thread you have said that I should read about the British legal system and/or its principles. I have not taken your guidance. But what I have done is waited to see how you were intended to tie Britain's (today Britain is sometimes also referred to as: Great Britain or the United Kingdom) legal system and/or principles into this discussion on whether our Founding Fathers intended to give the Supreme Court the awesome power of Constitutional determination.
So without knowing what you had in mind as regards Britain's legal system and/or principles, here is what I know that I consider to be very relevant to this discussion.
First, Britain does not have and never did have a Constitution that exists in a single document. Nor is what Britain considers to be their Constitution even codified.
Second and most importantly, the legislation that is passed by Parliament (Britain's functional equivalent of our Congress) is considered to be the law of the land, period. Britain's Supreme Court has no power whatsoever to trump or dispath, in any way, what Parliament considers to be Constitutional. In other words, the legislation that Parliament passes is both Constitutional and absolutely final.
Nowhere in the Constitution is it stated that the Supreme Court was granted or has the power of judicial review. Likewise, nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination. Infer and/or adduce as you will, but there is absolutely nothing "explicit".
What is "explicit" is the 10th Amendment: "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.
Now, this is my getaway post, and I feel that you have created and left a dangling participle of sorts that I want to address as best I can without knowing specifically what you had in mind.
Twice in this thread you have said that I should read about the British legal system and/or its principles. I have not taken your guidance. But what I have done is waited to see how you were intended to tie Britain's (today Britain is sometimes also referred to as: Great Britain or the United Kingdom) legal system and/or principles into this discussion on whether our Founding Fathers intended to give the Supreme Court the awesome power of Constitutional determination.
So without knowing what you had in mind as regards Britain's legal system and/or principles, here is what I know that I consider to be very relevant to this discussion.
First, Britain does not have and never did have a Constitution that exists in a single document. Nor is what Britain considers to be their Constitution even codified.
Second and most importantly, the legislation that is passed by Parliament (Britain's functional equivalent of our Congress) is considered to be the law of the land, period. Britain's Supreme Court has no power whatsoever to trump or dispath, in any way, what Parliament considers to be Constitutional. In other words, the legislation that Parliament passes is both Constitutional and absolutely final.
(Wudge has left the building.)
Terms like judicial power, arising under, Cases, and Controversies are understandable in the Constitution because of their extensive examination under British jurisprudence, which was the precursor to the American legal system.
Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power), and the Constitution, under Article VI, is the Supreme Law of the Land. As you point out, there is no written British Constitution that proclaims itself the Law of the Land--therefore British judges have no higher law than Acts of Parliament. In contrast, American judges have the Constitution, which is a higher source of legal authority than statutes passed by Congress and signed by the President.
If Judges refuse to apply Constitutional limitations to a statute, then they violate Article VI by ignoring the Supreme Law of the Land.
Terms like judicial power, arising under, Cases, and Controversies are understandable in the Constitution because of their extensive examination under British jurisprudence, which was the precursor to the American legal system.
Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power), and the Constitution, under Article VI, is the Supreme Law of the Land. As you point out, there is no written British Constitution that proclaims itself the Law of the Land--therefore British judges have no higher law than Acts of Parliament. In contrast, American judges have the Constitution, which is a higher source of legal authority than statutes passed by Congress and signed by the President.
If Judges refuse to apply Constitutional limitations to a statute, then they violate Article VI by ignoring the Supreme Law of the Land.
Article III, sections I and II of our Constitution contain the term “judicial power.” Still, nowhere in the Constitution is it stated that the Supreme Court was granted or has the power of “judicial review”. Likewise, nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination.
We agree that in America, the Constitution is the supreme law of the land. Moreover, we agree too that when the Founding Fathers were constructing our Constitution, Britain did not have a Constitution. And we further agree that the Britain’s Supreme Court has never possessed the power to strike down laws passed by Britain’s law making body, because the power of Constitutional determination has never been granted to Britain’s Supreme Court by any document at any time.
I believe these facts are undisputed.
Now, this is a pure quote from your post: “Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power).” You also state that: “Terms like judicial power, arising under, Cases, and Controversies are understandable in the Constitution because of their extensive examination under British jurisprudence, which was the precursor to the American legal system.” [End of quote]
However, in Britain, the term “judicial power” (or similar terms) could not possibly be recognized by anyone at any time in Britain to mean that those words conveyed to Britain’s Supreme Court that it had the power to strike down laws passed by Britain’s law making body, because that power has never existed in Britain. So the use of the term “judicial power” by the Founding Fathers could not reasonably have been used for the purpose of conveying from Britain’s system of jurisprudence that the Founding Fathers intended to grant America’s Supreme Court the awesome power of striking down laws passed by Congress.
Though Britain did not have their version of our Constitution at the time the Founding Fathers were drawing on British jurisprudence to construct our Constitution, today Britain’s Parliament does follow a set of law and principles that they consider to be Britain’s Constitution. Though it is still not in one document or codified.
However, even though Britain has a Constitution today, Britain’s Supreme Court still does not possess the power to strike down laws passed by Parliament. In other words, at no time in Britain's history has the term “judicial power’ conveyed to Britain’s Supreme Court that it had the power to strike down laws passed by Britain’s law making body.
Hence, out of logical necessity it does not follow that the term “judicial power” has ever meant that it conferred the power of Constitutional determination to Britain’s Supreme Court. In turn, out of logical necessity that means the Founding Fathers could not have reasonably expected that using the term “judicial power” in the Constitution would convey in America a power that it did not and never has conveyed in Britain.
Now, this is another pure quote from your post: “Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power). [End of quote]
Certainly, judges in Britain do posses “judicial power” and were obligated to “decide cases” at the time the Founding Fathers considered British jurisprudence in constructing our Constitution. Moreover, they still possess “judicial power” and remain obligated to “decide cases” today.
However, they cannot and never could “decide cases” that exceed their “judicial power” to do so. And one such example would be a case wherein it was claimed that a law passed by Parliament was not Constitutional. Clearly, Britain’s Supreme Court could not accept and decide such a case, because it has never at any time been granted the power to do so.
As such, it would once again be outside the bounds of logic to hold or believe that the obligation of judges in Britain to “decide cases” as part of their “judicial power” could have been taken by the Founding Fathers to convey more power under our Constitution than ever existed in Britain. That is, unless the power was explicitly established in the Constitution.
To put it another way, before judges can “decide a case” by exercising their “judicial power”, they must first possess the power do so. However, our Constitution did not grant either judges or Justices the power to grant power to themselves. And nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination.
What remains true is that powers not granted in the Constitution were reserved to the States or to the people, and this is artfully expressed in the Tenth Amendment as follows: “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.”
(To me, the basis of your post screamed for comment.)
Article III, sections I and II of our Constitution contain the term “judicial power.” Still, nowhere in the Constitution is it stated that the Supreme Court was granted or has the power of “judicial review”. Likewise, nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination.
We agree that in America, the Constitution is the supreme law of the land. Moreover, we agree too that when the Founding Fathers were constructing our Constitution, Britain did not have a Constitution. And we further agree that the Britain’s Supreme Court has never possessed the power to strike down laws passed by Britain’s law making body, because the power of Constitutional determination has never been granted to Britain’s Supreme Court by any document at any time.
I believe these facts are undisputed.
Now, this is a pure quote from your post: “Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power).” You also state that: “Terms like judicial power, arising under, Cases, and Controversies are understandable in the Constitution because of their extensive examination under British jurisprudence, which was the precursor to the American legal system.” [End of quote]
However, in Britain, the term “judicial power” (or similar terms) could not possibly be recognized by anyone at any time in Britain to mean that those words conveyed to Britain’s Supreme Court that it had the power to strike down laws passed by Britain’s law making body, because that power has never existed in Britain. So the use of the term “judicial power” by the Founding Fathers could not reasonably have been used for the purpose of conveying from Britain’s system of jurisprudence that the Founding Fathers intended to grant America’s Supreme Court the awesome power of striking down laws passed by Congress.
Though Britain did not have their version of our Constitution at the time the Founding Fathers were drawing on British jurisprudence to construct our Constitution, today Britain’s Parliament does follow a set of law and principles that they consider to be Britain’s Constitution. Though it is still not in one document or codified.
However, even though Britain has a Constitution today, Britain’s Supreme Court still does not possess the power to strike down laws passed by Parliament. In other words, at no time in Britain's history has the term “judicial power’ conveyed to Britain’s Supreme Court that it had the power to strike down laws passed by Britain’s law making body.
Hence, out of logical necessity it does not follow that the term “judicial power” has ever meant that it conferred the power of Constitutional determination to Britain’s Supreme Court. In turn, out of logical necessity that means the Founding Fathers could not have reasonably expected that using the term “judicial power” in the Constitution would convey in America a power that it did not and never has conveyed in Britain.
Now, this is another pure quote from your post: “Judges are obligated to decide cases (this is one of those principles that came to America from Britain--the judicial power). [End of quote]
Certainly, judges in Britain do posses “judicial power” and were obligated to “decide cases” at the time the Founding Fathers considered British jurisprudence in constructing our Constitution. Moreover, they still possess “judicial power” and remain obligated to “decide cases” today.
However, they cannot and never could “decide cases” that exceed their “judicial power” to do so. And one such example would be a case wherein it was claimed that a law passed by Parliament was not Constitutional. Clearly, Britain’s Supreme Court could not accept and decide such a case, because it has never at any time been granted the power to do so.
As such, it would once again be outside the bounds of logic to hold or believe that the obligation of judges in Britain to “decide cases” as part of their “judicial power” could have been taken by the Founding Fathers to convey more power under our Constitution than ever existed in Britain. That is, unless the power was explicitly established in the Constitution.
To put it another way, before judges can “decide a case” by exercising their “judicial power”, they must first possess the power do so. However, our Constitution did not grant either judges or Justices the power to grant power to themselves. And nowhere in the Constitution is it is stated that the Supreme Court was granted or has the power of Constitutional determination.
What remains true is that powers not granted in the Constitution were reserved to the States or to the people, and this is artfully expressed in the Tenth Amendment as follows: “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.”
(To me, the basis of your post screamed for comment.)
The judicial power extends to the limits of judicial jurisdiction. Unlike British judges, the American federal courts have Article VI, and they have jurisdiction over cases arising under the Constitution (Art. III, sec. 2).
The judicial power extends to the limits of judicial jurisdiction. Unlike British judges, the American federal courts have Article VI, and they have jurisdiction over cases arising under the Constitution (Art. III, sec. 2).
The point was and remains that the logic behind your previous argument did not at all flow and follow from Britain to America, which I believe clearly comes across as being super true in my post.
Now it sounds like you wish to base your argument on the notion that because Federal courts were given jurisdiction over cases arising under the Constitution that the Founding Fathers necessarily intended to give the Supreme Court the awesome power of Constitutional determination. In other words, whoever ended up with "jurisdiction over cases arising under the Constitution", your logic would contend that the Founding Fathers necessarily intended to give them clarte blanche to reject a work product of Congress.
Unfortunately, that logic does not necessarily follow either, because nowhere in the Constitution does it explicitly state that the Supreme Court was granted that awesome power.
What you want others to believe is that even though the Founding Fathers wanted to clearly establish and/or enumerate as necessary the powers granted to the three branches of government -- as evidenced by their incredible desire to do so when they enumerated 18 specific powers of Congress, the final one of which explicitly gave Congress the power to pass laws as necessary to execute the other 17 powers -- that the Founding Fathers also intended to give the Supreme Court the power to strike down laws passed by Congress but that they had no intention to explicitly say so in the Constitution.
Moreover, had the Founding Fathers intended to grant the Supreme Court with a power of final authority over what is Constitutional, then they would have necessarily placed the Supreme Court above Congress when it comes to which branch has the final say over whether or not laws are Constitutional. Obviously, the Founding Fathers could then not have established three equal but separate branches of government, because, per you, they intended to have Congress beholding to the Supreme Courts' final authority over laws passed by Congress. Again, per you, this was their intent even though they never explicitly said that in the Constitution or anywhere else.
Furthermore, you are the one who propositioned the argument that the Founding Fathers drew on the experience of British jurisprudence in crafting the Constitution, yet British jurisprudence did not grant and never has granted the Supreme Court with the power of Constitutional determination. So your previous argument works directly against your new argument.
In this whole regard, what is clear is exactly what the Founding Fathers intended to make explicit and did make explicit when they articulated the Tenth Amendment; 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.”
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