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Marbury v Madison.

Some of the examples you offered raise constitutional issues, and some do not. Whether a baker may refuse to serve a homosexual, for example, depends on that state's public accommodations law and has nothing to do with the Constitution.

I can agree with this to a certain extent. Except of course that having protected classes seems to me to be a violation of the equal protection clause in the 14th Amendment. Which the States must adhere to.
 
not talking about mobs but about other branches of govt and state governments. Do you understand?

It was due to mob mentality in states that enabled Jim Crow laws. Ironically it was also those Jim Crow laws which were accepted by the courts. Which is why I know that the SCOTUS doesn't always make good decisions. ;)
 
I can agree with this to a certain extent. Except of course that having protected classes seems to me to be a violation of the equal protection clause in the 14th Amendment. Which the States must adhere to.

State public accommodations laws have sometimes violated the First Amendment, but I don't see how they raise any equal protection issue.
 
State public accommodations laws have sometimes violated the First Amendment, but I don't see how they raise any equal protection issue.

Is it equal protection when some classes have extra protection while other classes do not?
 
It was due to mob mentality in states that enabled Jim Crow laws.

OMG so because govt was ahead of curve once but the source of evil throughout human history you think govt is great and our Founders were wrong to create a tiny tiny federal govt??????
 
OMG so because govt was ahead of curve once but the source of evil throughout human history you think govt is great and our Founders were wrong to create a tiny tiny federal govt??????

Don't know where you got all that clap trap from. :shrug:
 
Don't know where you got all that clap trap from. :shrug:

you said states enabled Jim Crow and Feds didn't thus Feds were good and states were evil and thus our Founders were mistaken by creating a country based on a tiny federal govt. Making sense now?
 
you said states enabled Jim Crow and Feds didn't thus Feds were good and states were evil and thus our Founders were mistaken by creating a country based on a tiny federal govt. Making sense now?

Nope, didn't say that at all. Didn't even imply it. You might want to re-read what I said.
 
Nope, didn't say that at all. Didn't even imply it. You might want to re-read what I said.

ok so you lost and are lying, Why not tell us what you said??
 
ok so you lost and are lying, Why not tell us what you said??

Reading comprehension problems? Tell ya what, re-read what I said. This time read past the first sentence that you quoted. Or do you seriously not know that the court system, which includes SCOTUS, isn't a part of the federal system?
 
Is it equal protection when some classes have extra protection while other classes do not?

In equal protection challenges, the Supreme Court's "strict scrutiny" standard applies only applies to certain types of laws or other government actions. It applies either where the government action affects a right the Court considers fundamental, or where it makes a "suspect classifications." A law only does this if it classifies people by race or national origin--and maybe by alienage.

States can and in some cases do prohibit discrimination in public accommodations on more grounds than are recognized in the federal public accommodations law. The constitutional basis for that law, which is part of the Civil Rights Act of 1964, is Congress' power to regulate interstate commerce. The reason they had to reach for that good ole catchall, the Commerce Clause, is that it is usually private persons who own and operate public accommodations, and almost nothing in the Constitution prohibits discrimination by private persons. Anyone can read Katzenbach v. McClung (the "Ollie's Barbecue Case") and decide for himself how persuasive the Court's reasoning about the effect of race discrimination on interstate commerce is.

States can go further in these laws because their authority to make laws and policies is inherent, rather than granted by the Constitution of the U.S. But they have sometimes gone too far and run up against the First Amendment. In both cases where the Supreme Court held a state public accommodations law unconstitutional, the law prohibited discrimination on the basis of sexual preference, and private persons had discriminated against homosexuals. Massachusetts' law, which defined the Boston St. Patrick's Day Parade as a public accommodation, was held unconstitutional as applied in Hurley for violating the parade organizers' freedom of speech. New Jersey's law, which defined the Monmouth council of the Boy Scouts of America as a public accommodation, was held unconstitutional as applied in Dale for violating the council members' freedom of association.

What Marbury v. Madison stands for is more complicated than most people think, but I'll mostly leave that for another post. Chief Justice Marshall's brilliant, clever arguments in that case have been discussed a lot over the years. In effect he arrogated the power of judicial review to the Court, and yet not a power of review as broad as what it's usually taken to be now. I don't accept that the Supreme Court has the sole word or the last word on what this or that part of the Constitution means.
 
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In equal protection challenges, the Supreme Court's "strict scrutiny" standard applies only applies to certain types of laws or other government actions. It applies either where the government action affects a right the Court considers fundamental, or where it makes a "suspect classifications." A law only does this if it classifies people by race or national origin--and maybe by alienage.

States can and in some cases do prohibit discrimination in public accommodations on more grounds than are recognized in the federal public accommodations law. The constitutional basis for that law, which is part of the Civil Rights Act of 1964, is Congress' power to regulate interstate commerce. The reason they had to reach for that good ole catchall, the Commerce Clause, is that it is usually private persons who own and operate public accommodations, and almost nothing in the Constitution prohibits discrimination by private persons. Anyone can read Katzenbach v. McClung (the "Ollie's Barbecue Case") and decide for himself how persuasive the Court's reasoning about the effect of race discrimination on interstate commerce is.

States can go further in these laws because their authority to make laws and policies is inherent, rather than granted by the Constitution of the U.S. But they have sometimes gone too far and run up against the First Amendment. In both cases where the Supreme Court held a state public accommodations law unconstitutional, the law prohibited discrimination on the basis of sexual preference, and private persons had discriminated against homosexuals. Massachusetts' law, which defined the Boston St. Patrick's Day Parade as a public accommodation, was held unconstitutional as applied in Hurley for violating the parade organizers' freedom of speech. New Jersey's law, which defined the Monmouth council of the Boy Scouts of America as a public accommodation, was held unconstitutional as applied in Dale for violating the council members' freedom of association.

What Marbury v. Madison stands for is more complicated than most people think, but I'll mostly leave that for another post. Chief Justice Marshall's brilliant, clever arguments in that case have been discussed a lot over the years. In effect he arrogated the power of judicial review to the Court, and yet not a power of review as broad as what it's usually taken to be now. I don't accept that the Supreme Court has the sole word or the last word on what this or that part of the Constitution means.

Ah yes, the ole' powerful Commerce Clause. The Clause that was expanded beyond its original intent to be so encompassing that the Federal Government can do almost anything that it pleases based on it. (note: I said "almost") That in itself was a tragedy of monumental proportions. However even with its expanded power I believe that it is in violation of the 14th Amendments equal under the law clause. After all, how can protecting certain classes while ignoring others not be considered unequal?

But I do agree with you that the courts are not the sole and final arbiters of what is and isn't Constitutional. The People are via Jury Nullification.
 
Nope, not under that impression at all. It's obvious that SCOTUS doesn't always make good decisions. And no, democratic is not always better. In fact its often far worse. Mob mentality often brings forth pitchforks and torches.

Watching too many movies. :lol:
 
So...what do you do? Are you wishing that the courts had judicial review now?

obviously wishing all three branches had it equally, which is stated in Constitution, and matters were ultimately decided by voters rather than 9 unelected ninnys who gave themselves the power over the other branches.
 
obviously wishing all three branches had it equally, which is stated in Constitution, and matters were ultimately decided by voters rather than 9 unelected ninnys who gave themselves the power over the other branches.

All three branches actually do have it equal. The legislative body makes the rules that the executive branch must enforce including what the courts can rule on or not if it really wanted to. Executive body makes sure the rules are enforced but has no power to ignore the legislative or the courts. Court makes sure the legislative doesn't violate the Constitution and peoples Rights. That is how our government works. Ignore the rhetoric, learn how our system actually works.
 
All three branches actually do have it equal. The legislative body makes the rules.

and actually that has nothing to do with judicial review. Sorry to rock your world
 
All three branches actually do have it equal. The legislative body makes the rules that the executive branch must enforce including what the courts can rule on or not if it really wanted to. Executive body makes sure the rules are enforced but has no power to ignore the legislative or the courts. Court makes sure the legislative doesn't violate the Constitution and peoples Rights. That is how our government works. Ignore the rhetoric, learn how our system actually works.

But some are more equal than others. There is a reason the Constitution devotes Article I to Congress, Article II to the President, and only gets around to the Supreme Court in Article III. Jefferson did not want a Supreme Court at all, and Hamilton makes clear in the Federalist that the judiciary was meant to be by far the weakest of the three branches. No sooner does Article III establish the Supreme Court, than it gives Congress power to establish (and so, by logical extension, the power to then limit or even dissolve) lower federal courts as it may see fit. And no sooner has Article III done that, than it makes the Supreme Court's appellate jurisdiction subject to "such exceptions . . . and . . . regulations as the Congress may make." Because all but a small part of the Court's jurisdiction is appellate, and because without jurisdiction the Court cannot decide the law, this gives Congress a lot of power over the Court.

You alluded to this when you said Congress, if it really wanted to, could make rules about what the courts can rule on, or not. A few times Congress has exercised this power to prevent the lower federal courts from hearing any cases involving a particular subject, and a few other times it has threatened to do that. Once, in a post-Civil War case called Ex Parte McCardle, Congress even went so far as to rush through a law specifically designed to remove the Supreme Court's jurisdiction over a case, after it had already heard oral arguments in it. The Court, in a very short decision, meekly acknowledged that it no longer had any power to proceed, and dismissed the case.

I wouldn't go so far as to say the President can't ignore the courts. President Jackson defied the Supreme Court when it came to establishing a national bank, and President Lincoln mostly ignored what the Court had held in the Dred Scott case.

We should never accept the notion that we all have to jump whenever the Court speaks, no matter how nonsensical or unacceptable to most of us what it says may be. That is for sheep. The fact so many people seem to have become convinced they have to accept that the Supreme Court has the final say about everything in the Constitution is a testimony to the Court's clever self-promotion. As Justice Scalia pointedly noted in his dissent in Obergefell, quoting Hamilton, the Court has no power to enforce its decisions, but must rely on the President and the states for that.
 
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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.

Isn't judicial review specifically granted the Court in Article 3 Section 2?
 
Isn't judicial review specifically granted the Court in Article 3 Section 2?

My understanding is that the Supremacy Clause granted review over State and local laws and executive actions, but did not provide for review over Federal issues of Congressional legislation or Executive Branch actions.

Marbury v. Madison extended that review power over acts by the Federal government, which was not clear under the Supremacy Clause. Since Marbury was not challenged at the time, the precedent was established and is maintained. At least until addressed by a possible future Constitutional Amendment.
 
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Isn't judicial review specifically granted the Court in Article 3 Section 2?

Not judicial review of the constitutionality of acts of Congress. The Supreme Court asserted its power to conduct that kind of review for the first time in Marbury.
 
My understanding is that the Supremacy Clause granted review over State and local laws and executive actions, but did not provide for review over Federal issues of Congressional legislation or Executive Branch actions.

Marbury v. Madison extended that review power over acts by the Federal government, which was not clear under the Supremacy Clause. Since Marbury was not challenged at the time, the precedent was established and is maintained. At least until addressed by a possible future Constitutional Amendment.

There was nothing unique about Marbury. Marshall relied in the very limiting arising under doctrine.

Judicial review was not a new concept. It can be traced to Sir Coke's Bonham v College of Physicians of 1610 in the Court of Common Pleas. There were the colonial era ruling did Holmes v. Watson (1780) in New Jersey, the Ten Pound Act Cases (1786-1787) in New Hampshire, and Trevett v. Weeden of 1786.

Post Constitution and prior to Marbury, there were Hylton v. United States 3 U.S. 171 (1796) and Calder v. Bull 3 U.S. 386 (1798).

Article VI's supremacy clause was pretty narrow in scope. The concern was state laws that conflicted with the Article I powers. There was no special Article III conferment of power in Article VI. The purpose of Aryicle III power was over federal legislation. Note that jurisdiction over states was limited to state to state or person to other state. State laws are not under the jurisdiction of the Supreme Court unless it can be read into Article VI, and then it was limited to Article III.
 
There was nothing unique about Marbury. Marshall relied in the very limiting arising under doctrine.

Judicial review was not a new concept. It can be traced to Sir Coke's Bonham v College of Physicians of 1610 in the Court of Common Pleas. There were the colonial era ruling did Holmes v. Watson (1780) in New Jersey, the Ten Pound Act Cases (1786-1787) in New Hampshire, and Trevett v. Weeden of 1786.

Post Constitution and prior to Marbury, there were Hylton v. United States 3 U.S. 171 (1796) and Calder v. Bull 3 U.S. 386 (1798).

Article VI's supremacy clause was pretty narrow in scope. The concern was state laws that conflicted with the Article I powers. There was no special Article III conferment of power in Article VI. The purpose of Aryicle III power was over federal legislation. Note that jurisdiction over states was limited to state to state or person to other state. State laws are not under the jurisdiction of the Supreme Court unless it can be read into Article VI, and then it was limited to Article III.

Perhaps if you had read my post #5...:

Marbury v. Madison did not create the idea of judicial review...

and then the post I was responding to...:

Isn't judicial review specifically granted the Court in Article 3 Section 2?

You would see that the post you responded to was simply a clarification, and not an assertion that Marbury created the idea of judicial review. :coffeepap:
 
Perhaps if you had read my post #5...:



and then the post I was responding to...:



You would see that the post you responded to was simply a clarification, and not an assertion that Marbury created the idea of judicial review. :coffeepap:

I was only responding to the parts of your post that have no historical supporting evidence. I was also only adding historical evidence to your Maybury comment, not Maybury creating judicial review.
 
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