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Thread: The Supreme Court and Judicial Review by Warren Michelsen

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    Regular Member SovereigntyOrDeath's Avatar
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    The Supreme Court and Judicial Review by Warren Michelsen

    It's a long and very interesting read.

    What Constitutional Right will be diminished next?

    Judicial Review

    The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.

    Since the constitution does not give this power to the court, you might wonder how it came to be that the court assumed this responsibility. The answer is that the court just started doing it and no one has put a stop to it. This assumption of power took place first in 1794 when the Supreme Court declared an act of congress to be unconstitutional, but went largely unnoticed until the landmark case of Marbury v Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review. Since then, the idea that the Supreme Court should be the arbiter of constitutionality issues has become so ingrained that most people incorrectly believe that the Constitution granted this power to the federal judiciary.
    Powers of the Supreme Court

    Article III of the Constitution provides for the establishment of a Judicial branch of the federal government and Section 2 of that article enumerates the powers of the Supreme Court. Here is Section 2, in part:

    Section 2. 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;

    to all Cases affecting Ambassadors, other public Ministers and Consuls;
    to all Cases of admiralty and maritime Jurisdiction;
    to Controversies to which the United States shall be a Party;
    to Controversies between two or more States;
    between a State and Citizens of another State;
    between Citizens of different States;
    between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Feel free to examine the entire text of Article III to assure yourself that no power of Judicial Review is granted by the Constitution.

    "Well," you might say, "someone has to review laws for constitutionality. Why not the Supreme Court?" Some possible answers:

    First and foremost, it is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally.
    It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of "the fox guarding the hen house."
    The Constitution's "checks and balances" were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches. There is no such system of checks and balances to protect the states and the people when multiple branches of government, acting in concert, erode and destroy the rights and powers of the states and the people.
    Even if the Supreme Court could be counted on to keep the Executive and Legislative branches from violating the Constitution, who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally? Unless you believe that the Supreme Court is infallible (and, demonstrably, it is not), then allowing the Supreme Court to be the sole arbiter of Constitutionality issues is obviously flawed.
    Justices are appointed, not elected and may only be removed for bad behavior (which has happened in the distant past but these days, appointment to the Supreme Court is like a lifetime appointment). If the court upholds unconstitutional laws, there is no recourse available. We the People cannot simply vote them out to correct the situation. Thomas Jefferson wrote, in 1823:

    "At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."

    It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. Even the Supreme Court should be accountable for overstepping Constitutional limits on federal power.
    Judicial review turns the Constitution on its head. The Judiciary was created as the weakest branch, controlled by both the Legislative and Executive branches. Judicial review makes the Judiciary master of both the Legislature and Ececutive, telling them both what that may and may not do.
    There are only nine Justices and, under the current system, it takes only a simple majority — five votes — to determine a case. Given the supermajority requirement mandated by the Constitution to pass Constitutional amendments, a simple majority requirement by the Supreme Court, to uphold a suspect law, defies the spirit of the Constitution. If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional.
    The people and the states have little control over the makeup of the Supreme Court.
    Officials in all three branches of government take an oath of office to uphold the Constitution. The Supreme Court Justices, Senators, Congressmen, and Vice President, and other federal officers, all take an oath of office to "support and defend" the Constitution. (The president's oath of office in Article II, Section 1, requires that he "preserve, protect, and defend the Constitution of the United States.") Why is the Supreme Court's version of "constitutional" considered more authoritative? Is the Judicial branch more to be trusted than the Executive or Legislative branches? Prudence dictates that we be wary of all three branches (and especially wary of the one unaccountable branch).
    Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality. The Constitution is a set of rules made by the states as to how the government should act. The "judicial review" paradigm allows the government to make its own rules with no say by the original rule-makers — the states.
    The Constitution was created by the states and any question as to the meaning of the Constitution is rightly settled by the states. When you make rules for your children, do you permit your children to interpret your rules in any manner they like? Of course not. Yet, the states are permitting the federal government — the "child" of the states — to do exactly that.
    Since the power of Judicial Review is not expressly granted to the Supreme Court by the Constitution, this power, per the tenth amendment, is "reserved to the States respectively, or to the people."

    Read that last listed reason above again, for it contains the key to this site's being. The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people. Therefore, the Supreme Court is itself acting unconstitutionally when it exercises the power of 'Judicial Review.' It would require a Constitutional Amendment specifically granting this power to the court in order for 'Judicial Review' to be constitutional!

    And just how should the determination of "constitutionality" be handled? For that answer, it helps to understand how the Constitution is (supposed to be) amended.

    Amending the Constitution
    Amending, The Right Way

    Article V explains how the Constitution may be amended. It states (emphasis added):

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    As you can see, the constitution may be amended by The People (in the form of the congress) and by The States (state legislatures or state constitutional conventions). Large majorities (called a "supermajority") are required both to bring a proposed amendment to a vote (two-thirds) and to approve a new amendment (three-fourths). It is clear that the founders did not want amending the highest law of the land to be easy or trivial.
    Amending, The Wrong Way

    The Constitution is routinely, and easily 'amended' by the congress. When the Congress passes an unconstitutional law, it has the very same effect as if the Congress had amended the Constitution without the consent of the states — government assumes powers not granted to it by the states in the Constitution. Passing unconstitutional laws is very easy. Once passed, repealing unconstitutional laws is very, very hard.
    Forget Civics Class

    If you took a high school civics class, you probably learned "How A Bill Becomes A Law" or something similar. The process, as explained, involved some legislator with a Good Idea who writes a proposed bill and sends it to committees who review and ponder it and, if it's a Really Good Idea, it gets voted out of committee. Bad Ideas are tabled or pigeon-holed. The bills that make it to the full legislature and pass, go to the president to be signed or vetoed. You were probably taught something like that.

    You were not told about the back-room deals, the vote trading ("I'll vote for your stinky bill if you'll vote for mine.") and the arm twisting ("If you want to keep your committee chairmanship, you'll vote this out of committee with a favorable recommendation.")

    And you likely never heard how the congress scrupulously ensures that the legislature is in fact empowered by the Constitution to legislate in the particular area which is the subject of the proposed bill. You never heard about it because it doesn't happen.
    The Real World

    In the real world, the President receives the 4,000-page Omnibus Tax Everything And Spend The Loot Act of and can either veto the entire package or let it become law. The Omnibus package includes all manner of pork-barrel, wasteful provisions and is likely to include many, many provisions which are simply unconstitutional.

    In fact, it is often the case that no one knows the entire contents of a bill when it comes up for a vote. Each legislator has made sure that their own pet projects have been included, sometimes at the last minute and without others' knowledge, so that when the vote actually occurs, any particular legislator may have very little knowledge of the entire bill.

    Since the President does not have line-item veto power (the Supreme Court declared it unconstitutional) the President has only two choices: either veto the entire package, which may result in "shutting down the government," or accepting the bad with the good. Pragmatism usually wins out.

    Another way to get bad legislation enacted into law is to attach it to another bill for which there is strong support. There are often riders attached to popular legislation which have nothing at all to do with the main legislation. To stop the bad legislation requires killing or vetoing the entire bill. It doesn't happen nearly often enough.

    There was a legislative attempt some years back to require that each new bill state the Constitutional provision which permitted Congress to legislate in the particular area addressed. It was defeated. Despite having sworn an oath to uphold and defend the Constitution, most legislators do not feel constrained by the limited powers granted to the congress by the Constitution. Since most anything can pass for 'constitutional' with a broad enough reading of the Commerce Clause, legislators are more concerned with how voting for particular legislation will affect their chances of reelection, than they are about the legislation's constitutionality.

    "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it." — Chief Justice Marshall in Marbury v. Madison

    The problem with the precedent of Judicial Review is that the the impediments to challenging an unconstitutional law are numerous and difficult to overcome while the passing of laws of questionable constitutionality is just as easy as passing the constitutional ones. Hence, the various rules and mechanisms put into effect by the federal government do indeed place the Constitution "on a level with ordinary legislative acts" changeable "by ordinary means" for all practical purposes.
    Err On The Side Of Caution

    There is an old adage that it is better to let 100 guilty men go free than to imprison one innocent man. New physicians have, for centuries, sworn to adhere to the Hippocratic Oath, the principal ethic of which is "First, do no harm." In fact, "First, do no harm" has been used in many, many contexts outside the field of medicine. "Do no harm" would be a good principle for legislators to adopt.

    There is no question that passing and enforcing unconstitutional laws does harm to the Constitution, to the States, and to the people of the United States. I would contend that it is better to defeat 100 Constitutional laws than to pass one unconstitutional law. First, do no harm. We must make it harder for the congress to pass unconstitutional laws.

    Since passing an unconstitutional law and enforcing it has the same effect as amending the Constitution, legislation of questionable constitutionality should be handled in a special way — more like proposed amendments, than as regular legislation. Such legislation should require approval by two thirds of each house of congress to bring it up for a vote, and such legislation should require a three fourths vote of each house to enact it into law. This would stem the flood of new, unconstitutional laws and would be a good first step on the road to restoring Constitutional government.
    Last edited by SovereigntyOrDeath; 12-19-2014 at 02:39 AM.
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    ? for OP: if the law has not changed since courts began ruling on constitutional queries (and it has gone on for years) isn't that implying that the other branches view the power as being real?

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    Regular Member SovereigntyOrDeath's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    ? for OP: if the law has not changed since courts began ruling on constitutional queries (and it has gone on for years) isn't that implying that the other branches view the power as being real?
    Exactly! It is an illusion. It's like a cop telling you its the law that you need to show ID when you don't, or telling you they can search your car.

    If a lie is told long enough and enough people believe it, it becomes the "truth" eventually.

    Kinda like the earth is flat paradigm.

    The Founders warned of an out of control Judiciary.

    Jefferson's warning:

    Thomas Jefferson wrote, in 1823:

    "At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."

    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

    "How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!"

    Samuel Adams

    Even a Supreme Court Justice warns us:

    "Day by day, case by case, the court is busy redesigning a Constitution for a nation I do not recognize."

    Justice Antonin Scalia
    Last edited by SovereigntyOrDeath; 12-19-2014 at 02:35 AM.
    "Nullification is the rightful remedy" Thomas Jefferson
    http://tracking.tenthamendmentcenter...-preservation/

    "Constitutional Carry is not an oxymoron"
    A Sovereign

    "Malo periculosam, libertatem quam quietam servitutem." Thomas Jefferson

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    If I recall correctly, Jefferson was big proponent of limiting the judiciary's power (as well as other branches) but his ideas did not win out.

    The analogy of a cop asking to see ID is not a good one ; I know its hard to find an exact one. But PDs are admin agencies that only have the authority that the legislative body gives them...so a cop saying you must provide ID is easily found to be fact or not by looking at the laws.

    Many times, courts have looked at inaction of legislative bodies as a pseudo-rubber-stamp-of-approval. So your idea, as you likely know, would need legislation to be passed. And you know that will not happen and the courts will not divest themselves of their ultimate power.

    And many times when a court rules one way in respect to a law or gov't activity found to be constitutional, the legislature does act.


    My opinion is that no one can vote on a right .... not even guys in robes. Allowing any gov't body to make "policy" on a right = limiting the right and making it a privilege. When one right interferes with another, then its a civil matter (if damages are shown) and not a criminal matter and a gov't cannot be a party unless it is the injured party.

    Ex: you have the right to travel, you operate your MV into a guy's house, the guy has been injured and his rights violated; a lawsuit can be properly brought. Ex2: you operate your MV above the speed limit in your travels but injure no one nor violated anyone's right; no suit is proper. Folks may argue about the MV examples but there are others.

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    Regular Member SovereigntyOrDeath's Avatar
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    The MV examples are spot on. Common Law. If there is an injured party, there is a case. No injured party, no case. I have beat traffic tickets in this way. Where is the injured party?

    It feels like we are trapped because there is no way to over rule current SCOTUS rulings. They are in for life.

    The best example I can think of is Roe v Wade.

    Life, Liberty, and The Pursuit of Happiness was completely ignored for untold thousands of unborn Americans.

    Ultimately the states will need to act.

    "The current Supreme Court / Judicial Review paradigm must be abandoned. The Constitution, not the Supreme Court, is the supreme Law of the Land and that supreme law says that "The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The right to judge the constitutionality of federal laws and regulations belongs to the states and to the people. " Warren Michelsen
    Last edited by SovereigntyOrDeath; 12-19-2014 at 04:01 AM.
    "Nullification is the rightful remedy" Thomas Jefferson
    http://tracking.tenthamendmentcenter...-preservation/

    "Constitutional Carry is not an oxymoron"
    A Sovereign

    "Malo periculosam, libertatem quam quietam servitutem." Thomas Jefferson

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