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Judicial Review

Mortibis

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Should the Supreme Court have the power of judicial review?

This power was not expressly written into the constitution and it was given to the court by themselves in 1794. The judges are not directly elected by the people either. Many times judges' decisions will be greatly affected by their personal opinions. Thomas Jefferson believed that, "the opinion which gives to the judges the right to decide what laws are constitutional and what not...would make the Judiciary a despotic branch."

The argument can be made though that the judges aren't as affected by politics because they aren't really responsible to a faction. However this can go both ways because they, not facing reelection, might not be looking out for the views of the people. Judges can practically make decisions on a whim and it is random whether the people in the court represent your views or not. A court might be all have a similar set of opinions which could misrepresent a large percent of citizen for decades.

What do you think?
 

Alex

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Mortibis said:
Should the Supreme Court have the power of judicial review?

This power was not expressly written into the constitution and it was given to the court by themselves in 1794. The judges are not directly elected by the people either. Many times judges' decisions will be greatly affected by their personal opinions. Thomas Jefferson believed that, "the opinion which gives to the judges the right to decide what laws are constitutional and what not...would make the Judiciary a despotic branch."

The argument can be made though that the judges aren't as affected by politics because they aren't really responsible to a faction. However this can go both ways because they, not facing reelection, might not be looking out for the views of the people. Judges can practically make decisions on a whim and it is random whether the people in the court represent your views or not. A court might be all have a similar set of opinions which could misrepresent a large percent of citizen for decades.

What do you think?
Article III Section 2 of our Constitution:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority
The Supreme Court does have Constitution review.
 

Mortibis

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alex said:
Article III Section 2 of our Constitution:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority


The Supreme Court does have Constitution review.
Unless I'm reading it wrong, that doesn't really say anything about making a law unconstiutional. The section to me specifies what indivdual cases the judiciary can hear. It doesn't appear to allocate the power to override both the executive and legilative branches, branches elected directly by the people, who have agreed on a law.
 

Alex

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Mortibis said:
Unless I'm reading it wrong, that doesn't really say anything about making a law unconstiutional. The section to me specifies what indivdual cases the judiciary can hear. It doesn't appear to allocate the power to override both the executive and legilative branches, branches elected directly by the people, who have agreed on a law.

"arising under this Constitution"

There must be Constitutional review. Without it, our civil rights would be trampled on. There must be a means to protect the minority from the majority. Without it, we are not a free nation. The sole reason that our Constitution was passed was because of the Bill of Rights. States did not want to pass it out of fear that these rights would be put into jeopardy. Someone must ensure that those rights are upheld. The Supreme Court is the most logical to do this because it is not elected by the people. The majority cannot impose its will on this branch. Thank the stars for the Supreme Court and its Constitutional review. Without them, we would live in a country that dictated social morality, racial superiority, and religious persecution. This would not be a free country, it would be more similar to a Middle Eastern country like Taliban-controlled Afghanistan.
 

Mortibis

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You make a good point about the judiciary looking out for minority rights and I'll have to agree with you. But this has not always been the case; for instance, the Dred Scott decision not only decreased the rights of African-Americans but also was a major contributer to the Civil War. Now, the court appears to be in order, but what if its again controlled by individuals with poor judgement? Although I doubt it will happen it's still a point of consideration.
 

Alex

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Mortibis said:
You make a good point about the judiciary looking out for minority rights and I'll have to agree with you. But this has not always been the case; for instance, the Dred Scott decision not only decreased the rights of African-Americans but also was a major contributer to the Civil War. Now, the court appears to be in order, but what if its again controlled by individuals with poor judgement? Although I doubt it will happen it's still a point of consideration.
Dred Scott was decided before amendments were created to change it. I understand your point though and you are correct that it is possible. In these cases, if a judge goes against the Constitution, they can be impeached.
 

Mortibis

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alex said:
Dred Scott was decided before amendments were created to change it. I understand your point though and you are correct that it is possible. In these cases, if a judge goes against the Constitution, they can be impeached.
Even after the 14th amendment was created segregation was still declared constitutional (by an act of judicial review) in the case Plessy v. Furguson. The court was hardly upholding minority rights here even thogh the equal protection clause existed.
 

laska

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I like the concept of judicial review. It is a third check behind the Senate and President on any given legislation that may undermine the Bill of Rights. The check on the judiciary is the amendment process and super majority.
 
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