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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.
not talking about mobs but about other branches of govt and state governments. Do you understand?
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.
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??????
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?
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??
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.
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.
All three branches actually do have it equal. The legislative body makes the rules.
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.
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.
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.
Marbury v. Madison did not create the idea of judicial review...
Isn't judicial review specifically granted the Court in Article 3 Section 2?
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:
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