Supreme Court Power of Judicial Review - Unconstitutional

Discussion in 'Political Opinions & Beliefs' started by Brother Jonathan, Nov 20, 2013.

  1. misterveritis

    misterveritis Banned

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    They have the power to decide between claimants. They usurped the power to decide constitutionality. I have read Marshall's argument. It was brilliant. But do you believe the framers would go through so much trouble to prevent tyranny in all other cases except for this one? What can be more corrupting than absolute power? That is what the court usurped.

    We can fix it. We need to term limit all judges. And we need a means for the Congress and the people acting through their states to overturn their decisions. That could be two constitutional amendments.
     
  2. GlobalCitizen

    GlobalCitizen Well-Known Member

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    I need to know the specific power those 9 judges have. Because from where I'm sitting, they have very little ability to enforce any of their decisions on their own. They are old and feeble, and few in number lol. Any action toward the people would have to go through the executive. I do not believe Marshall ordered the SoS or Jefferson to deliver Marbury's commission. I read the whole thing a few times because it is not that easy for a layman to comprehend, but from what I read, Marshall simply ruled the withholding of Marbury's commission unconstitutional, but in this case, the Court wasn't willing to grant Marbury's commission because the nature of the case involved delving into executive decisions that the Court either didn't have the authority or expertise to decide upon. But I admit I could be wrong, the wording in Marbury is not that easy to interpret. But it certainly didn't strike me as a usurping of power by Marshall.
     
  3. Brother Jonathan

    Brother Jonathan Banned

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    Look at the actions of the Supreme Court prior to the Civil War and after. They did not abuse their power much prior to the Civil War. Yet, the Dred Scott decision left Lincoln to believe that the slave powers were working to nationalize slavery through the courts. It appears that Lincoln was right.

    A few years later, Hepburn v. Griswold (1870) decided correctly that gold and silver were money as written in Article I. Section 8. The powers-that-be at the time did not like that decision, promptly replaced three Supreme Court justices, and reversed the decision just a few months later with a clearly unconstitutional decision to use legal tender laws and paper money in Knox v. Lee (1871).
     
  4. misterveritis

    misterveritis Banned

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    Your difficulty may be one reason why very few raised the alarm when it happened.

    The court has absolute power. I have described how to fix the problem.
     
  5. Brother Jonathan

    Brother Jonathan Banned

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    There was actually quite a bit of uproar over Marbury v. Madison. I am of the opinion that there were a few Plato Nobel Liars among our founding fathers. While they did not win the day in 1787, or ratification, they usurped the power later.

     
  6. yguy

    yguy Well-Known Member

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    I read it several times myself before it dawned on me that Marshall had misquoted the appellate jurisdiction clause, thus rendering null and void his reasoning WRT its applicability to the Judiciary Act provision. If in fact that provision was constitutional, the arrogation of power would be in declaring it otherwise; but as you imply, and as Hamilton observed in Federalist #78, the Judiciary has "neither FORCE nor WILL", and can only take whatever power is ceded by the implied consent of one or both of the other branches. In this case, if the provision was constitutional, Congress would have been perfectly justified in impeaching every Justice who signed on to that opinion, but of course it did not.
     
  7. GlobalCitizen

    GlobalCitizen Well-Known Member

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    They do not. I know only a snippet of the Court's history, but I am aware of at least one time in which Congress and the Executive ganged up on the Judiciary and threatened to use their constitutional powers against it. When I think it was FDR threatened to appoint 6 more justices to the SCOTUS (with approval from Congress) in order to pass New Deal reforms. The Court eventually caved. So it wasn't absolute in the 1930's.
     
  8. misterveritis

    misterveritis Banned

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    They do have absolute power. They cannot be overturned.

    We can fix the two problems I see with two amendments to the Constitution. The first is to establish term limits for all judges. The second is to provide a means for the congress and the people to overturn Supreme Court decisions. Then the Supremes can do what they want.
     
  9. danielpalos

    danielpalos Banned

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    Not at all; our federal Congress can limit what may be brought before the Judicature, simply and merely by being better social-ists, by standing around and talking about Things, and perchance, even take a social, voice vote for free.
     
  10. Phil

    Phil Well-Known Member

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    There were bigger issues involved in the Marbury versus Madison decision.
    The Federalists knew they were about to lose the Presidency and Congress, possibly forever. Their only hope of retaining power came from control of the judiciary so they appointed as many new judges as they could. This included Marshall, then Secretary of State, because the Chief justiceship was vacant. Marshall might reasonably fear that if Marbury's appointment was cancelled his own might be in jeopardy.
    Marshall and Jefferson were cousins and lifetime rivals for personal reasons.
    While Jefferson favored smaller government than most federalists and would not have grieved to see the end of slavery, it was uncertain whether his successors would feel the same way. The south could monopolize the courts and strangle the north. Marshall was looking far ahead to disastr, possibly including the breakup of the country. The other justices were also Federalists, but there had been many vacancies on the court up to that time.
    In 1804 a justice left the court and Jefferson made his intentions clear by appointing William Johnson to replace him. Johnson was there to oppose Marshall whenever possible.
    Next the administration impeached justice Samuel Chase on a weak case based on a case he decided on circuit. The impeachment failed.
    Next Jefferson persuaded Congress to add a seventh seat to the court, coupled with the death of one of Washington's appointees, Jefferson now had three justices against Marshall's four and time on his side.
    Madison came next and appointed aging Gabriel Duvall and 32-year-old Joseph Story to try to overwhelm Marshall in bost directions. It didn't work. Those two voted for the good of the country, not the party, but by then the Federalists were not a threat to regain the Presidency or Congress.
    When Jefferson's second and third appointees died, Monroe and John Quincy Adams chose the best men available for their seats.
    Andrew Jackson however did what Marshall was worried about, appointing seven justices in eight years, all pro-slavery, mostly southerners, and the biggest bully of them all, Roger Taney as Chief. Even though John Tyler was a southern slaveholder, Congress blocked his efforts to fill three vacancies, finally letting one nominee in as his term was expiring, so Polk could appoint only two instead of three.
    Millard Fillmore, as the only real Whig President, appointed 42-year-old Benjamin Curtis to the court, hoping he would do for the Whigs what Marshall did for the Federalists. Curtis resigned after six years, after writing the lone dissent from the Dred Scott decision.
    Fillmore wasn't allowed to fill the other vacancy and when Franklin Pierce became President, three justices demanded he choose John archibald Campbell from Alabama. (When the Civil War broke out he left the court to become Secretary of War for the Confederacy.)
    Lincoln got several vacancies because the southerners departed and Taney finally died at 88. He replaced him with Treasury Secretary Salmon P. Chase, who obviously would defend the silver act and anything else Lincoln had enacted.
    A tenth seat was created to give Lincoln one more appointment, then the number of justices was reduced so Andrew Johnson couldn't fill the next two vacancies. Then they put it back to nine when Ulysses S. Grant took over.
    In 1881 the last Democrat died, so the court had it easy for decades.
    President Taft appointed five justices and elevated elderly Democrat Edward White to Chief so he could replace him later.
    White died months after Warren G. Harding took office. He chose Taft, then asked Taft who he wanted for three more quick vacancies.
    Coolidge took a free-thinking Harlan Fiske Stone for his only choice.
    Hoover replaced Taft with Charles Evans Hughes (who Taft knew should have been Chief since 1910). About to be slaughtered in his reelection run, Hoover was forced to appoint Benjamin Cardozo in 1932.
    FDR then faced three of Taft's yes-men, 70-plus Hughes, the bigot Charles McReynolds (Wilson's first appointee who broke the Democrat's heart) and the dunce Owen Roberts, versus three reasonable left-leaning moderates. The NRA was shot down and other New Deal policies were being challenged.
    He was trying to save the country from starving. They were trying to save it from dictatorship.
    Not only that, they weren't immune from the Depression either. Taft's last appointee-Willis Van Devanter-just wanted a bigger pension. They gave it and he became FDR's first vacancy Then Cardozo died at 65. Another retired. FDR chose AUSTRIAN JEW FELIX FRANKFURTER so Jewish liberal Louis Brandeis could retire and he promptly did. Then Harding's last man died.
    Hughes and McReynolds retired at the start of FDR's third term. He made Stone Chief and had no problems with Roberts, so the court was all liberal until moderates slowly gained power in the 1980s.
    The reason Sarah Palin couldn't name a bad decision is because John Paul Stevens made sure all decisions made sense when he became senior liberal in 1994, and to be a majority opinion you needed the vote of a moderate since 1987. There has yet to be a radical right-wing decision by the court since 1936, but the next vacancy might make that possible or impossible for decades.
    The Presidents who loaded the court (Jackson, Lincoln, Taft and FDR) represent the real threat to the country, not their pawns.
     
  11. Liberalis

    Liberalis Well-Known Member

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    Judicial Review is a legitimate power of the courts granted by the Constitution. Both the federalists and the anti-federalists acknowledged the Constitution granted the courts this power. Judicial power includes striking down unconstitutional laws.

    To the OP: define judicial power and cite why that definition is correct in the context of the ratification of the US Constitution.
     
  12. GlobalCitizen

    GlobalCitizen Well-Known Member

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    They cannot be overturned, but Congress has the power to legislate an entire new law, or a series of laws with minor changes. The Court's power is almost symbolic, they have no way to enforce anything without the Executive. So both the Congress and Executive have ways to counter the Court. They both have additional tools to combat the Court because they can increase the number of justices on the bench. Federal judges below the SCOTUS can be impeached. SCOTUS has no private army. On paper, it may seem like they have too much power, but in reality, they have little. Congress has the purse, the Executive has the sword.
     
  13. GlobalCitizen

    GlobalCitizen Well-Known Member

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    I wouldn't want to see terms of less than 20-25 years. Believe it or not, it is important to have people in DC who are not subject to the will of the people (or masses, or majority). I believe the life terms of SCOTUS justices were an appropriate placement of power by the framers, because as I stated above, the judiciary is the weakest of the 3 branches. Yet another wise decision by our founders in their efforts to avoid tyranny ever again. Packing the Court, authorized by the Constitution, and another check which seems to work, is enough in my view. Just threatening to use packing has proven to be effective in checking the Court in the past. There is such a thing as excessive democracy. The founders also realized that the majority can oppress minorities, and there must be checks against excessive democracy. Lifetime terms for the 9 members of the weakest branch are those checks.
     
  14. misterveritis

    misterveritis Banned

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    I do not believe any judge should sit for longer than a dozen years.

    - - - Updated - - -

    And yet judges have been destructive. They need to be restored to their proper place.
     
  15. yguy

    yguy Well-Known Member

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    If you believe that, then you oppose the constitutional provision requiring federal judges to abide by constitutional oaths of office, since the Constitution is, after all, neither more nor less than the supreme expression of the will of the People as represented by 3/4 of the states.

    You really wanna hang with that?
     
  16. danielpalos

    danielpalos Banned

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    How is that argument relevant, if adjudicating the law is a function of any Judicature?
     
  17. GlobalCitizen

    GlobalCitizen Well-Known Member

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    Yes, the point of lifetime terms is to reduce the influence of public opinion on judges to a lesser degree than the pres or Congress.
     
  18. misterveritis

    misterveritis Banned

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    We can fix this problem. Judges should not have lifetime appointments. They can remain independent of the Congress, the President and the immediate passions of the people by giving them terms in office longer than senators, representatives or the president. I personally like twelve years. We also need the means for the Congress and the people (acting through the state legislatures) to overturn any supreme court decision.

    The courts should not decide how 300 million plus citizens live.
     
  19. yguy

    yguy Well-Known Member

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    irrelevant to my question, which you evidently didn't understand.
     
  20. GlobalCitizen

    GlobalCitizen Well-Known Member

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    The USC is the will of the people, and all in govt swear to uphold and/or defend it, whether or not in the judiciary. All 3 branches must interpret the people's will while performing their duties. I think it is wise to have one of those interpreters placed in a position which is immune from temporary passions of the people.
     
  21. yguy

    yguy Well-Known Member

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    Yes, this is essentially what I said in #515, so by your leave I'll take this as a retraction of what I was responding to in that post.
     
  22. GlobalCitizen

    GlobalCitizen Well-Known Member

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    I didn't see anyone talking about the temporary passions of the people. I thought it a valid point to bring up in a thread about SCOTUS having too much power. The framers wrote about insulating judges from public opinion, and hence the reason for the lifetime terms.
     
  23. Phil

    Phil Well-Known Member

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    What will these judges do for a living after 12 years on the Supreme Court? Shouldn't it at least be theirlast job/
     
  24. Liberalis

    Liberalis Well-Known Member

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    Congressmen can hold office for 12 years or more. Every incumbent Senator will have served at least 12 years. The purpose of the courts is to protect against tyranny of the majority. Allowing the people to overturn SCOTUS decisions would completely erase that benefit.
     
  25. yguy

    yguy Well-Known Member

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    Perhaps you'd care to explain how a judge who takes an oath to obey the will of a supermajority of the people is supposed to keep that ideal uppermost in his mind.

    Seeing the people have had that ability since the inception of the Judiciary under the Constitution, you might want to rethink that pronouncement.
     

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