Supreme Court Power of Judicial Review - Unconstitutional

Though Dredd Scott is known as the worst SCOTUS decision ever, if not for the courts Dredd Scott would have had no recourse to even try to gain his rightful freedom. Also Dredd Scott had never been a free man, rather he should have been for 20+ years because he was in a territory it wasn't allowed. So the court refused to free him, not re-enslave.

And the idea of judicial review does not come solely from Marbury v. Madison, state courts practiced judicial review even before the Constitution was drafted. Not to mention when the founding fathers spoke of checks and balances, judicial review is always mentioned both in debates while drafting the Constitution, and in the Federalist Papers.

If people bothered to read the Marbury v. Madison opinion before commenting on it, they would see without the power of judicial review the judiciary had very little power, and the big issue in the case was the executive branch having too much power.

 

Scott was no freeman for 20 years. He was not to be re-enslaved, he never was free before. He claimed to be a citizen of Missouri, which was later admitted that he was not. Taney

Even if Scott were to be considered a free(d)man, he would not hold the position of citizen and would be denied rights, and privileges, and immunities reserved and guaranteed only to citizens.

I don't believe you have actually read Taneys opinion as everything you have claimed to his point is fallacious.

 

That is the whole point. Nine people in Washington D.C. who wear black robes do not really have any power over you. They only have the power of TV. Smoke and mirrors.

 

The power of judicial review is one they are supposed to have, there's a lot of evidence for that. And yes, courts do make law all the time, it's a common-law system where precedent from higher courts binds.

Every branch of the federal government is to have equal power to prevent an imbalance. And of course the last time the executive branch ignored SCOTUS or ended so well right? (i.e. The Trail of Tears)

Scotus is essential, maybe legislators should try writing laws within the Constitution?

 

Do you agree with Thomas Jefferson and Abraham Lincoln or do you disagree with them? Please state why.

 

It was actually an issue I struggled with a lot myself when I first studied Constitutional Law. At first I voiced similar opinions as to why Nine Justices would be the last say, I even felt that way towards the end of the class until I looked into more myself. As to the Jefferson quotation, not that I do not value it, but in the Marbury case he was seeking to exert his own unbalanced power of the executive over the judiciary (by not delivering letters to newly appointed judges, even if Adams had appointed them in a quite shady way). He always preached that the branches are "separate" yet at the same time are there to provide checks and balances to the other. But, for me, if they are to be able to have checks and balances they all must hold some power over the other. Executive appoints judges, has the power of veto, decides how to execute laws, congress approves judges, makes laws, amends the constitution, and the judiciary is there for review.

I my eyes the judiciary is there to serve when there is a challenge between two of the branches, between one of the branches and the states, between states, and most importantly when the people want to challenge either the state or the Federal Government. Do away with judicial review, and once Congress passes a law (and they don't do much Constitutional analysis when passing laws) and the Executive signs it (another level of review) the people would have no way to challenge.

The tyranny of the majority would rule, which exactly goes against the reason for the Constitution.

So yes while I agree it would be a danger to be rules by judges, we are not. Many laws never go under review because people don't challenge them, in essence judicial review is a tool to help the people have power over the laws.

Even when SCOTUS issues an opinion, or strikes down a law, Congress still has the opportunity to rewrite it or amend the Constitution (which is the definition of rule by the people considering the ratification process).

When it comes to state laws being struck down, Congress and the Executive have already let their Constitutional interpretations be known by passing and signing off on the laws or Constitutional amendments. The Judiciary just happens to be the forum for state laws to be examined and see if they violate federal law (thus violating the Supremacy Clause).

So in short, it always good to heed the warnings of the forefathers, but we must also look to the system we have now and realize the powers all the branches truly possess.

 

I thought it was a reiteration of the concept of limited government. Why even have a supreme court if not to resolve legal disputes arising from our supreme law of the land.

 

Why not repeal the Seventeenth Amendment and restore the balance our Founding Fathers intelligently designed, in Their wisdom.

 

I agree, and have stated that numerous times. I also believe we should go back to the original manner of selecting presidents. A list of qualifying individuals who want to be president should be forwarded to all state legislatures. Individuals should run without any tie to a candidate to be the elector from each state congressional district. On a given day at a specific time those elected to be electors should meet at the state capital and hold a convention/meeting and decide who the electors from that state should select 2 potential candidates as president. At the meeting of the electoral college all of the states should post their choices and the votes counted. The man with the most votes, if it is a simple majority will be president and the man with the second number will be vice president. In the event of a dispute the House of Representatives should caucus with the electoral college and then determine who is the president and who is the vice president. The point being that all elections should indeed be local and each voter should vote for the elector from his district which he would obviously know better than any national candidate. Open party affiliation should be eliminated. We should be electing people, not parties to run our country.

 

Resolve disputes is the duty of the Supreme Court. Judicial review is the duty of the States.

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Judicial review is the power granted to the States.

 

Why do you believe our supreme court should not have any authority in adjudicating our supreme law of the land?

 

I do believe they should have the authority to adjudicate disputes under the constitution. I don't believe that I should bow down to 9 people in black robes who live in Washington D.C. I'll marry who I want to marry and I'll own a gun and I'll use real money instead of their fiat currency if I want. I don't need to be ruled. I am not a dangerous person who needs to be watched continuously and told what to do. The Constitution was a document of liberty not a document to rule.

 

If the several States were more serious about their prerogatives, many of those cases should have never gone to the socialism of our general government, instead of using State Capitalism to achieve more equitable solutions at lower cost.

 

States have that power as well, but the problem with not granting it to SCOTUS as well is that it causes an imbalance. The Constitution is a contract between all the States in the union, and basically when SCOTUS strikes something down all they are saying is, "you didn't behave within the confines of the contract." It cannot be left solely to the parties within a contract to determine if they are acting within a contract.

The only federal opinions that are binding to state courts come from SCOTUS, however because the Constitution is a federal issue what federal courts say is highly persuasive. And when adjudicating things like state constitutions (unless the question is if they violate the U.S. Constitution) federal courts will usually submit the question to the court's highest land on the issue.

So when individuals challenge the constitutionality of laws passed or even the rulings in their own states, and SCOTUS treats cert, aren't they just adjudicating a dispute arising under the Constitution (i.e. did my State fulfill it's contractual obligations to me?).

 

How do you figure that?

Not so. If the state appeals and SCOTUS denies cert, the lower court ruling is every bit as binding as a SC ruling would be.

 

You may make a Federal Constitutional challenge in a state court and they have every right to rule on it (and they do for their own constitutions all the time). If it develops that way, then it must go to the supreme court of the state before it goes to SCOTUS. However, defendants will most likely remove the case from state to federal court if it's a US Constitution question.

And no, if the Supreme Court fails to grant cert. then there is no binding law (except for those involved in the case). District courts and the Federal Circuits do not bind state courts... http://www.law.georgetown.edu/acade..._COURT_IS_BINDING_Painter-and-Mayer-FINAL.pdf

I should clarify though, if it's someone challenging a law, and no cert or appeal is granted then the judgment between the two parties stands. While this doesn't bind courts via stare decisis, the defendants (usually the state) have a judgment against them which can be used by others via res judicata.

 

Obviously you and BJ have differing definitions of "judicial review".

SC rulings are no different in that respect. Moreover, the supremacy clause is quite specific about which instruments comprise federal law, and court decisions are not among them.

Legally, no court is so bound. Courts of law in the US are bound first by the US Constitution, then by those legal instruments made in pursuance thereof, then, if they are state courts, by their states' Constitutions.

 

Judicial review is the power to stop the executive or legislative branch because they are acting against a higher authority (usually the Federal or state Constitution), so yes state courts are well within their power to do this.

And courts are always bound by higher courts, it's how the common-law system works. Let's take New York, their supreme court (trial-level) court is bound by all interpretations of law by NY supreme court-appellate division, NY Court of Appeals, and by SCOTUS, NY supreme-court appellate division is bound by NY Court of Appeals and SCOTUS, and NY Court of Appeals is only bound by interpretations by SCOTUS. The whole point of the common-law system is judges define statues or create law where there is non because the legislature is too slow, and to prevent a bunch of interpretations lowers courts are bound.

So if SCOTUS says, "This doesn't follow the Constitution", or "This is the test for unreasonableness," then yes all courts in the country are bound.

 

Then clearly that system is not in harmony with the Constitution.

It is perfectly clear that the federal Judiciary has no such power, so what it creates is judicial precedent, not law.

Not by the law, they aren't.

On the contrary, if in fact the law in question does follow the Constitution, any judge under a Constitutional oath is constrained thereby to so rule, regardless of what SCOTUS says - i.e., he can in such case adhere to his oath or to stare decisis, but not both. This being the inescapable case, if you'd have that judge adhere to the latter, I'm dying to hear why.

 

If there is any conflict between the several States, which Body politic should adjudicate it?

 

Federal Jurisdiction applies to conflicts between states under Art. III of the Constitution

 

I guess that solves our problem.

 

If that is true why didn't they write it into the Constitution?

The Supreme Court has ruled and is currently ruling with no oversight or balance. So we need to fix it by providing an amendment to reign in the out of control judges. We need a means for the Congress to overturn a decision. And we need the same for the people acting through the states. We also need term limits on all judges.

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Are you arguing that once we realize we are living under tyranny that we have to accept it?

This is another reason to fight and win the Article V fight.

 

You seem to be of the mind that the United States is a civil-law system, when it is clearly not. Not only were all the courts pre-Constitution setup as common-law courts, but all states (except Louisiana) have reception statutes that incorporate English common-law into the American system. With common-law comes stare decisis, that is how the system works, that is what the states have all adopted, that means precedent is law.

And to your snarky comment on Judicial Oaths, let me quote the question asked, by Congress (the legislature) to prospective district court (trial level) judges, "In general, Supreme Court precedents are binding on all lower federal courts, and Circuit Court precedents are binding on the district courts within the particular circuit. Are you committed to following the precedents of higher courts faithfully and giving them full force and effect, even if you personally disagree with such precedents?" Without an answer of yes, you will not be approved.

Most of the time when people think SCOTUS deprives rights State's amend their constitutions to include those rights, not just have a free-for-all in the courts.

 

I'm not the least bit interested in such labels, as they serve no other purpose than to divert attention from the glaring discrepancies between your assertions and the Constitution.

Given that the benchmark by which my contentions are rightly judged is the Constitution, why exactly should I find any of that noteworthy?

And since you evaded the question I'll ask again: why exactly do you think judges should adhere to stare decisis rather than their oaths of office?