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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.
Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.
What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.
Examples of some laws that is reasonable to believe would be passed and enforced:
- All schools must teach the Christian Bible.
- Some States make laws stating that Marriage is only between a Man and a Woman.
- Due Process is not needed to strip someone on the No Fly List of their Rights.
- Bakers have the Right to refuse service in States that do allow SSM.
- Abortion is a Murder in the First Degree Offense in some states.
- Some states allow abortion no matter the reason and at any time, even up to the day before birth.
- All guns banned.
Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.
So...what do you do? Are you wishing that the courts had judicial review now?
So you theory is that it needs to exist so instead of creating an amendment we should just allow the court's the power to expand thier own power?
This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.
Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.
What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.
Examples of some laws that is reasonable to believe would be passed and enforced:
- All schools must teach the Christian Bible.
- Some States make laws stating that Marriage is only between a Man and a Woman.
- Due Process is not needed to strip someone on the No Fly List of their Rights.
- Bakers have the Right to refuse service in States that do allow SSM.
- Abortion is a Murder in the First Degree Offense in some states.
- Some states allow abortion no matter the reason and at any time, even up to the day before birth.
- All guns banned.
Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.
So...what do you do? Are you wishing that the courts had judicial review now?
Marbury v. Madison did not create the idea of judicial review.
That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.
However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.
All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.
Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.
I agree with Captain Adverse.
Article III mentions "the judicial power" and never defines it, suggesting that the founders understood the meaning of the term, and that the term included the concept of judicial review. If the judiciary has no power to review the written law, then what power does it have?
If we really are to have a tripartite government, what exactly is the third branch to do, if not review and judge the law, the legislative product?
This thread and your post is thought provoking. Could you explain the mechanics as to how exactly what you refer to as "we the people" would be able to do to get rid of the Supreme Courts two centuries old power of judicial review? How would that even come about?
Pick a legal way to do it. The Constitution does allow the legislature to simply legislate how the Judiciary can/cannot act. Or if you prefer we can make it an Amendment to the Constitution. How its done is not important for THIS thread. This thread is a hypothetical thought provocation for those that don't believe that the courts have the power of judicial review. It's to get them to wonder what this country would be like without it.
Where is the public will to do what you advocate - regardless of the legal avenue you might pursue?
I see no practical or real world way to accomplish what you suggest. Do you?
This thread is a hypothetical thought provocation for those that don't believe that the courts have the power of judicial review. It's to get them to wonder what this country would be like without it.
This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
But again, like I told Crovax, this thread is not about whether or not SCOTUS has the Constitutional power for judicial review or not. This thread is about what would happen if SCOTUS didn't have that power. Please speak to that.
There are those that don't believe that SCOTUS has that power, that the Constitution doesn't talk about it so it doesn't have it. This thread is mainly for them. It's meant to get them to thinking what this country would actually be like without Judicial Review. I didn't make this thread about the Constitutionality of judicial review, I made the thread as a hypothetical thought provocation.
Did you not read my post? Here, let me highlight the relevant part to you...
And from post 3:
And from post 8:
And from post 9:
Now, if you're going to participate in the thread...Please speak to the topic of the thread. Stop attempting to derail the thread.
Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.
Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.
What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.
Examples of some laws that is reasonable to believe would be passed and enforced:
- All schools must teach the Christian Bible.
- Some States make laws stating that Marriage is only between a Man and a Woman.
- Due Process is not needed to strip someone on the No Fly List of their Rights.
- Bakers have the Right to refuse service in States that do allow SSM.
- Abortion is a Murder in the First Degree Offense in some states.
- Some states allow abortion no matter the reason and at any time, even up to the day before birth.
- All guns banned.
Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.
So...what do you do? Are you wishing that the courts had judicial review now?
Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.
Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.
What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.
Examples of some laws that is reasonable to believe would be passed and enforced:
- All schools must teach the Christian Bible.
- Some States make laws stating that Marriage is only between a Man and a Woman.
- Due Process is not needed to strip someone on the No Fly List of their Rights.
- Bakers have the Right to refuse service in States that do allow SSM.
- Abortion is a Murder in the First Degree Offense in some states.
- Some states allow abortion no matter the reason and at any time, even up to the day before birth.
- All guns banned.
Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.
So...what do you do? Are you wishing that the courts had judicial review now?
This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
Legal scholars at that time, and ever since, have agreed with the decision. They only ones who don't agree with it are a few radical extremists, along with a lot of couch potatoes and armchair quarterbacks on internet bulletin boards and political forums.
Except that's entirely false. Every single founder alive at the time of the decision opposed it. My god - it's in the freakin case title. The Madison of Madison v Marbury was the Father of the US Constitution and HE opposed the ruling. Thomas Jefferson, the president at the time, also a signer of the constitution - he said they did not have this grant of power. NO ONE but the court thought they did have the power at the time.
It's telling that their ruling was never honored. Marbury never got his seat.
It's telling that you don't know what you are talking about. Marbury didn't get his seat because the Supreme Court refused to issue the writ of mandamus forcing Madison to appoint him, and in doing so found the Judiciary Act unconstitutional. That was never legally challenged, and no impeachment proceedings against SCOTUS were ever commenced, thus the SCOTUS ruling WAS honored.
6."In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
Marbury v. Madison did not create the idea of judicial review.
That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.
However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.
All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.
Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.
Marbury v. Madison did not create the idea of judicial review.
That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.
However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.
All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.
Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.
The Supreme Court, Jefferson would write, was working “like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consoli*dated into one.”[
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