Supreme Court Power of Judicial Review - Unconstitutional

Brother Jonathan · Dec 23, 2013

Liquid Reigns said: ↑

It is the States that take Federal law and run it through the court system, from the States it goes to the Federal courts, and then if there is any objection to the ruling it can then go to the SCOTUS. SCOTUS does not get anything directly from Congress to decide on the constitutionality of anything. Again, Art 3 explains all this.
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The Dred Scott decision was an attempt to nationalize slavery rather than allow each state to determine the issue for themselves. They didn't get away with the because Lincoln wouldn't let them. That decision was not the original intent of the Constitution and Lincoln understood that concept. The Supreme Courts are supposed to settle disputes between States not determine laws for the nation. The United States were not supposed to be ruled by judges. Judges are supposed to settle disputes.

Brother Jonathan · Dec 23, 2013

Liquid Reigns said: ↑

You seem more irritated with the fact that Scotus can claim a law is unconstitutional, provided it has been challenged by the States.
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No, I am demonstrating that Thomas Jefferson and Abraham Lincoln understood the original intent of the Constitution did not allow the Supreme Court to make laws for the nation. They tried to nationalize slavery, they have nationalized abortion, and they will likely be nationalizing gay marriage. That was not the original intent of the federal government.

Liquid Reigns · Dec 23, 2013

Brother Jonathan said: ↑

The Dred Scott decision was an attempt to nationalize slavery rather than allow each state to determine the issue for themselves. They didn't get away with the because Lincoln wouldn't let them. That decision was not the original intent of the Constitution and Lincoln understood that concept. The Supreme Courts are supposed to settle disputes between States not determine laws for the nation. The United States were not supposed to be ruled by judges. Judges are supposed to settle disputes.
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Your argument is resting on the fact that SCOTUS said that the Federal court lacked jurisdiction in Dredd Scott, simply because he was not a citizen, and that the ruling by SCOTUS on Dred Scott should be nullified.

Liquid Reigns · Dec 23, 2013

Brother Jonathan said: ↑

No, I am demonstrating that Thomas Jefferson and Abraham Lincoln understood the original intent of the Constitution did not allow the Supreme Court to make laws for the nation. They tried to nationalize slavery, they have nationalized abortion, and they will likely be nationalizing gay marriage. That was not the original intent of the federal government.
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I don't see where Dred Scott was an attempt to nationalize slavery. Abortion may be legal, but states have the right to restrict it to certain time frames, etc. Gay marriage is a topic to itself.

danielpalos · Dec 23, 2013

Using eminent domain to abolish slavery could have been a moral high ground that did not need to be contested by capitalism.

Brother Jonathan · Dec 23, 2013

Liquid Reigns said: ↑

I don't see where Dred Scott was an attempt to nationalize slavery. Abortion may be legal, but states have the right to restrict it to certain time frames, etc. Gay marriage is a topic to itself.
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Abraham Lincoln's Speech at Springfield, July 17, 1858

Now, as to the Dred Scott decision; for upon that he makes his last point at me. He boldly takes ground in favor of that decision.

This is one-half the onslaught, and one-third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott's master and against Dred Scott and his family, I do not propose to disturb or resist the decision.

I never have proposed to do any such thing. I think, that in respect for judicial authority, my humble history would not suffer in a comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.

When he spoke at Chicago, on Friday evening of last week, he made this same point upon me. On Saturday evening I replied and reminded him of a Supreme Court decision which he opposed for at least several years. Last night, at Bloomington, he took some notice of that reply; but entirely forgot to remember that part of it.

He renews his onslaught upon me, forgetting to remember that I have turned the tables against himself on that very point. I renew the effort to draw his attention to it. I wish to stand erect before the country as well as Judge Douglas, on this question of judicial authority; and therefore I add something to the authority; and therefore I add something to the authority in favor of my position. I wish to show that I am sustained by authority, in addition to that heretofore presented. I do not expect to convince the Judge. It is part of the plan of his campaign, and he will cling to it with a desperate gripe. Even, turn it upon him turn the sharp point against him, and gaff him through he will still cling to it till he can invent some new dodge to take the place of it.

In public speaking of it is tedious reading from documents; but I must beg to indulge the practice to a limited extent. I shall read from a letter written by Mr. Jefferson in 1820, and now to be found in the seventh volume of his correspondence, at page 177. It seems he had been presented by a gentleman of the name of Jarvis with a book, or essay, or periodical, called the 'Republican,' and he was writing in acknowledgement of the present, and noting some if its contents. After expressing the hope that the work will produce a favorable effect upon the minds of the young, he proceeds to say:

That it will have this tendency may be expected, and for that reason I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthen by that of many others. You seem in pages 84 and 148, to consider the judges as the ultimate, arbiters of all constitutional questions a 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. Their maxim is, 'boni judicis est ampliare jurisdictionem'; and their power is 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.

Thus we see the power claimed for the Supreme Court by Judge Douglas, Mr. Jefferson holds, would reduce us to the despotism of an oligarchy.

Now, I have said no more than this in fact, never quite so much as this at least I am sustained by Mr. Jefferson.

Let us go a little further. You remember we once had a national bank. Some one owed the bank a debt; he was sued and sought to avoid payment, on the ground that the bank was unconstitutional. The case went to the Supreme Court, and therein it was decided that the bank was constitutional. The whole Democratic party revolted against that decision. General [Andrew] Jackson himself asserted that he, as President, would not be bound to hold a national bank to be constitutional, even though the Court had decided it to be so. He fell in precisely with the view of Mr. [Thomas] Jefferson, and acted upon it under his official oath, in vetoing a charter for a national bank. The declaration that Congress does not possess this constitutional power to charter a bank, has gone into the Democratic platform, at their national conventions, and was brought forward and reaffirmed in their last convention at Cincinnati. They have contended for that declaration, in the very teeth of the Supreme Court, for more than a quarter of a century. In fact, they have reduced the decision to an absolute nullity. That decision, I repeat, is repudiated in the Cincinnati platform; and still, as if to show that effrontery can go no farther, Judge Douglas vaunts in the very speeches in which he denounces me for opposing the Dred Scott decision, that he stands on the Cincinnati platform.

Now, I wish to know what the Judge can charge upon me, with respect to decisions of the Supreme Court which does not lie in all its length, breadth, and proportions at his own door. The plain truth is simply this: Judge Douglas is for Supreme Court decisions when he likes and against them when he does not like them. He is for the Dred Scott decision because it tends to nationalize slavery because it is part of the original combination for that object. It so happens, singularly enough, that I never stood opposed to a decision of the Supreme Court till this. On the contrary, I have no recollection that he was ever particularly in favor of one till this. He never was in favor of any, nor opposed to any, till the present one, which helps to nationalize slavery.

Free men of Sangamon free men of Illinois free men everywhere judge ye between him and me, upon this issue.

He says this Dred Scott case is a very small matter at most that it has no practical effect; that at best, or rather, I suppose at worst, it is but an abstraction. I submit that the proposition that the thing which determines whether a man is free or a slave, is rather concrete than abstract. I think you would conclude that it was, if your liberty depended upon it, and so would Judge Douglas if his liberty depended upon it. But suppose it was on the question of spreading slavery over the new territories that he considers it as being merely an abstract matter, and one of no practical importance. How has the planting of slavery in new countries always been effected? It has now been decided that slavery cannot be kept out of our new territories by any legal means. In what does our new territories now differ in this respect, from the old colonies when slavery was first planted within them? It was planted as Mr. Clay once declared, and as history proves true, by individual men, in spite of the wishes of the people; the mother government refusing to prohibit it, and withholding from the people of the colonies the authority to prohibit it for themselves. Mr. Clay says this was one of the great and just causes of complaint against Great Britain by the colonies, and the best apology we can now make for having the institution amongst us. In that precise condition our Nebraska politicians have at last succeeded in placing our own new territories; the government will not prohibit slavery within them, nor allow the people to prohibit it.

I defy any man to find any difference between the policy which originally planted slavery in these colonies and that policy which now prevails in our own new Territories. If it does not go into them, it is only because no individual wishes it to go. The Judge indulged himself, doubtless, to-day, with the question as to what I am going to do with or about the Dred Scott decision. Well, Judge, will you please tell me what you did about the Bank decision? Will you not graciously allow us to do with the Dred Scott decision precisely as you did with the Bank decision? You succeeded in breaking down the moral effect of that decision; did you find it necessary to amend the Constitution? or to set up a court or negroes in order to do it?
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And that is why Abraham Lincoln included the following paragraph in his first inaugural address to the American people,

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 than 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 decisions to political purposes.
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danielpalos · Dec 23, 2013

The Dred Scott decision established a federal precedent regarding rights in even controversial forms of private property.

Brother Jonathan · Dec 23, 2013

danielpalos said: ↑

Using eminent domain to abolish slavery could have been a moral high ground that did not need to be contested by capitalism.
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There was not anywhere near enough support to abolish slavery until 1863. After Lincoln gave the Emancipation Proclamation the blacks started freeing themselves and joined the Union army. That is primarily why the North won the war. The South couldn't allow a slave to have a gun.

Slavery had been expanding for decades and the slave powers had full intentions to create a slave empire. The Knights of the Golden Circle

Based on years of exhaustive and meticulous research, David C. Keehn's study provides the first comprehensive analysis of the Knights of the Golden Circle, a secret southern society that initially sought to establish a slave-holding empire in the Golden Circle region of Mexico, the Caribbean, and Central America. Keehn reveals the origins, rituals, structure, and complex history of this mysterious group, including its later involvement in the secession movement.
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danielpalos · Dec 23, 2013

I believe the southern States would have been amenable to eminent domain.

Brother Jonathan · Dec 23, 2013

danielpalos said: ↑

I believe the southern States would have been amenable to eminent domain.
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Would you elaborate on that concept please. I do not understand how that might work.

I know some slave owners were adamant about expanding slavery.

More from Abraham Lincoln,

Mr. Brooks, of South Carolina, in one of his speeches, when they were presenting him with canes, silver plate, gold pitchers, and the like, for assaulting Senator [Charles] Sumner, distinctly affirmed his opinion that when this Constitution was formed, it was the belief of no man that slavery would last to the present day.

He said, what I think, that the framers of our Constitution placed the institution of slavery where the public mind rested in the hope that it was in course of ultimate extinction. But he went on to say that the men of the present age, by their experience, have become wiser than the framers of the Constitution; and the invention of the cotton gin had made the perpetuity of slavery a necessity in this country.

As another piece of evidence tending to the same point: Quite recently in Virginia, man the owner of slaves made a will providing that after his death certain of his slaves should have their freedom if they should so choose, and go to Liberia, rather than remain in slavery. They chose to be liberated. But the persons to whom they would descend as property, claimed them as slaves. A suit was instituted, which finally came to the Supreme Court of Virginia, and was therein decided against the slaves, upon the ground that a negro cannot make a choice that they had no legal power to choose could not perform the condition upon which their freedom depended.

I do not mention this with any purpose of criticising, but to connect it with the arguments as affording additional evidence of the change of sentiment upon this question of slavery in the direction of making it perpetual and national. I argue now as I did before, that there is such a tendency, and I am backed not merely by the facts, but by the open confession in the Slave States.
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Phil · Dec 23, 2013

We just need more precise laws.

danielpalos · Dec 23, 2013

I believe the South was more aggrieved that socialism was only bailing out northern capitalism.

The material prosperity of the North was greatly dependent on the Federal Government; that of the the South not at all. In the first years of the Republic the navigating, commercial, and manufacturing interests of the North began to seek profit and aggrandizement at the expense of the agricultural interests. Even the owners of fishing smacks sought and obtained bounties for pursuing their own business (which yet continue), and $500,000 is now paid them annually out of the Treasury. The navigating interests begged for protection against foreign shipbuilders and against competition in the coasting trade. Congress granted both requests, and by prohibitory acts gave an absolute monopoly of this business to each of their interests, which they enjoy without diminution to this day. Not content with these great and unjust advantages, they have sought to throw the legitimate burden of their business as much as possible upon the public; they have succeeded in throwing the cost of light-houses, buoys, and the maintenance of their seamen upon the Treasury, and the Government now pays above $2,000,000 annually for the support of these objects. Theses interests, in connection with the commercial and manufacturing classes, have also succeeded, by means of subventions to mail steamers and the reduction in postage, in relieving their business from the payment of about $7,000,000 annually, throwing it upon the public Treasury under the name of postal deficiency. The manufacturing interests entered into the same struggle early, and has clamored steadily for Government bounties and special favors. This interest was confined mainly to the Eastern and Middle non-slave-holding States. Wielding these great States it held great power and influence, and its demands were in full proportion to its power. The manufacturers and miners wisely based their demands upon special facts and reasons rather than upon general principles, and thereby mollified much of the opposition of the opposing interest. They pleaded in their favor the infancy of their business in this country, the scarcity of labor and capital, the hostile legislation of other countries toward them, the great necessity of their fabrics in the time of war, and the necessity of high duties to pay the debt incurred in our war for independence. These reasons prevailed, and they received for many years enormous bounties by the general acquiescence of the whole country.

Source: http://sunsite.utk.edu/civil-war/reasons.html
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goober · Dec 23, 2013

Brother Jonathan said: ↑

The power of government comes from the Constitution. The Constitution does not grant the Supreme Court the power of judicial review. That power was granted to the States. If you believe that the Supreme Court should have the power of judicial review then petition for an Article V amendment. Until then every judicial review decision the Supreme Court has ever decided is void of law by their own supreme law of the land... the U.S. Constitution.
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Actually, if you believe the Supreme Court shouldn't have the power of judicial review, petition for an article V amendment, I'm happy with the current understanding of the constitution.

Brother Jonathan · Dec 23, 2013

goober said: ↑

Actually, if you believe the Supreme Court shouldn't have the power of judicial review, petition for an article V amendment, I'm happy with the current understanding of the constitution.
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That is your current understanding of the constitution and of those smart people on TV on the nightly news. A lot of us understand the original intent of the constitution and we find the power of judicial review given to the States in the Tenth Amendment. We don't need an amendment to change it.

SFJEFF · Dec 23, 2013

Brother Jonathan said: ↑

A lot of us understand the original intent of the constitution and we find the power of judicial review given to the States in the Tenth Amendment. We don't need an amendment to change it.
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I am sure both of you get together to talk with each other about how everyone else just doesn't get it.

Brother Jonathan · Dec 23, 2013

SFJEFF said: ↑

I am sure both of you get together to talk with each other about how everyone else just doesn't get it.
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You are not aware that there is a liberty movement going on in America?

MovetoAmend.org

TenthAmendmentCenter.com

Reinstatenow.com

Article V Project

SFJEFF · Dec 23, 2013

Brother Jonathan said: ↑

You are not aware that there is a liberty movement going on in America?
U]
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I strongly support the right of both of you to your movement.

goober · Dec 23, 2013

Brother Jonathan said: ↑

That is your current understanding of the constitution and of those smart people on TV on the nightly news. A lot of us understand the original intent of the constitution and we find the power of judicial review given to the States in the Tenth Amendment. We don't need an amendment to change it.
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You better get your $4.99 back that you paid for law degree.
There is a thing called precedent, you decide a case based on how the cases before it were decided.
Since judicial review has been a part of American law since the 1600's, there isn't any need for an amendment.
OTOH if you wanted to do away with it.......you would need something more than a right wing blog post ......

Brother Jonathan · Dec 23, 2013

goober said: ↑

You better get your $4.99 back that you paid for law degree.
There is a thing called precedent, you decide a case based on how the cases before it were decided.
Since judicial review has been a part of American law since the 1600's, there isn't any need for an amendment.
OTOH if you wanted to do away with it.......you would need something more than a right wing blog post ......
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I don't have a law degree and don't need one. I can read. The Constitution is not all that hard to read and understand. Anyone, who can read English can understand it. I reject precedent. Precedent is B.S. promoted by "lawyers" who don't understand the Constitution but understand profit by obfuscation.

goober · Dec 23, 2013

Brother Jonathan said: ↑

I don't have a law degree and don't need one. I can read. The Constitution is not all that hard to read and understand. Anyone, who can read English can understand it. I reject precedent. Precedent is B.S. promoted by "lawyers" who don't understand the Constitution but understand profit by obfuscation.
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Precedent is how cases get decided, it's how the law has worked for over a thousand years.
That's how the law works, deal with it.

Brother Jonathan · Dec 23, 2013

goober said: ↑

Precedent is how cases get decided, it's how the law has worked for over a thousand years.
That's how the law works, deal with it.
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Do you need a ruler to keep you in line? I don't. I don't mind obeying legitimate laws but I don't need a ruler telling me what to do all the time.

Liquid Reigns · Dec 23, 2013

Brother Jonathan said: ↑

No, I am demonstrating that Thomas Jefferson and Abraham Lincoln understood the original intent of the Constitution did not allow the Supreme Court to make laws for the nation.
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Congress makes laws, SCOTUS may, if a lawsuit makes it to them, decide if that law is constitutional or not based on the laws of the time. SCOTUS has made law recently with the ACA ruling, which other time has SCOTUS made law?

Brother Jonathan said: ↑

They tried to nationalize slavery.
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Slaves at the time were property, the Dred Scott decision was based on property rights, not civil rights, this is what Lincoln then politicized and made into a civil rights issue, thus we got the 13, 14, 15 amendments.

Liquid Reigns · Dec 23, 2013

Brother Jonathan said: ↑

Abraham Lincoln's Speech at Springfield, July 17, 1858

And that is why Abraham Lincoln included the following paragraph in his first inaugural address to the American people,
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Lincoln politicized the Scott case, nothing more. Because Lincoln claimed Judge Douglas and the ruling was for nationalizing slavery doesn't mean that that is what the ruling did. Lincoln is a politician, nothing more, he politicized the ruling to win favor.

Liquid Reigns · Dec 23, 2013

Brother Jonathan said: ↑

I don't have a law degree and don't need one. I can read. The Constitution is not all that hard to read and understand. Anyone, who can read English can understand it. I reject precedent. Precedent is B.S. promoted by "lawyers" who don't understand the Constitution but understand profit by obfuscation.
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Yet art 3 explains the process, the states can sue on the grounds of constitutionality, the feds get to decide, then if appealed can go to SCOTUS. SCOTUS then decides the constitutionality of the law based on the laws of the times and the USC. Politics of SCOTUS also plays the role, right now we have 5 R leaning judges and 4D leaning judges, so we get alot of dissent.

Brother Jonathan · Dec 23, 2013

Liquid Reigns said: ↑

Yet art 3 explains the process, the states can sue on the grounds of constitutionality, the feds get to decide, then if appealed can go to SCOTUS. SCOTUS then decides the constitutionality of the law based on the laws of the times and the USC. Politics of SCOTUS also plays the role, right now we have 5 R leaning judges and 4D leaning judges, so we get alot of dissent.
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U.S. Supreme Court Justice Roger Taney wrote the Supreme Court decision that Dred Scott, who had been a free man for 20 years, was to be re-enslaved. That is too much power for anyone to have. Nine people dressed in black robes in Washington D.C. do not deserve that much power over my life or Dred Scott.

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