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JmE

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Then I'm in good company because it wasn't such a clear cut answer then and it has been questioned by many much more educated than I since. AFAIK, budding attorneys are still taught that it is an inferred power that resulted from Marbury v. Madison in 1803.

If it is a constitutional duty of the Court then it shouldn't be something that court can refuse to perform, IMHO.
 

Werz

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Then I'm in good company because it wasn't such a clear cut answer then and it has been questioned by many much more educated than I since. AFAIK, budding attorneys are still taught that it is an inferred power that resulted from Marbury v. Madison in 1803.
Yeah, let's just ignore what the Framers of the Constitution believed:

Records from the Philadelphia Convention reveal that no fewer than a dozen delegates in almost two dozen instances discussed judicial review of federal legislation. Indeed, the understanding that judicial review would exist under the proposed Constitution proved critical to several decisions. The availability of judicial review convinced delegates to reject the judiciary's participation in a council of revision that could veto federal legislation. It also led delegates to discard a proposed congressional veto over state laws. Other delegates cited judicial review as a reason for adopting certain provisions. Only two delegates questioned judicial review, but neither proposed prohibiting it. Indeed, even those two delegates agreed, during the ratification struggle, that the Constitution would authorize judicial review of federal statutes. Finally, during the ratification fight, none of the Philadelphia delegates denied that the final version of the Constitution authorized judicial review of federal legislation. In fact, every delegate who spoke of judicial review affirmed that it was a feature of the new Constitution.
Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U.CHI.L.REV. 887, 928.

Or let's go to the original resource, Farrand's Records of the Federal Convention of 1787:

Mr. King: [T]he Judicial ought not to join in the negative of a Law [veto] , because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution. Vol. 1, p. 109.
Mr. Madison: In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Vol. 2, p. 28.
Mr. Govr. Morris: A law that ought to be negatived will be set aside in the Judiciary departmt. Vol. 2, p. 28.
Mr. Wilson: The Judiciary ought to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. Vol. 2, p. 73.
[Regarding Article III, Section 2] Docr. Johnson moved to insert the words "this Constitution and the" before the word "laws" ... The motion of Docr. Johnson was agreed to nem: con: [without dissent]. Vol. 2, p. 430.
Mr. Martin: Whether therefore, any law or regulations of the Congress, or any acts of its Presidents or other officers are contrary to, or not warranted by the constitution, rests only with the judges[.] Vol. 3, p. 220.
I won't speak to what "budding attorneys are still taught." Experienced attorneys do the research.

None of this is likely to make a difference to a dogmatic ideologue. But just in case someone more open-minded is reading along ...
 
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JmE

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Werz, you've given me some things to read and think about and I thank you for it. However, why do you have to be such a jerk about it? I'm not trying to bait you into anything. Mine were honest questions and thoughts. Some of the people on this forum and other forums know me personally. I'm pretty sure that they would tell you that I'm straight forward and not trolling you. I don't ask things when I'm not really, honestly seeking an answer.

Over the years, you've continually replied in this manner to me. What the heck is your problem with me? Need a hug?

Anywho... food for thought. Thank you again.
 
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Werz

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Aug 2, 2012
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Werz, you've given me some things to read and think about and I thank you for it. However, why do you have to be such a jerk about it? I'm not trying to bait you into anything. Mine were honest questions and thoughts. Some of the people on this forum and other forums know me personally. I'm pretty sure that they would tell you that I'm straight forward and not trolling you. I don't ask things when I'm not really, honestly seeking an answer.

Over the years, you've continually replied in this manner to me. What the heck is your problem with me? Need a hug?

Anywho... food for thought. Thank you again.
I don't mind answering people's questions (within reasonable limits), and I'm willing to defend my own opinions. I don't mind the fact that people disagree with me. You are not nasty, but you do come off as a bit smug and disingenuous. Maybe I'm getting the wrong impression, but I see a lot of that professionally, and I tend to react with sarcasm.
 

color of law

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Oct 7, 2007
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Location
Cincinnati, Ohio, USA
JmE,

I understand your frustration, but it is what it is. Read the Slaughter-House Cases dealing with the Fourteenth Amendment. Of the 150 cases heard by the Supreme Court involving the Fourteenth Amendment only15 involved freed blacks and 135 involved business entities, finely holding that corporations are persons.

With that said, expecting Werz to sugarcoat his answer or twist his answer to fit your perceived understanding will never happen. Werz and I are somewhat cut from the same cloth. When it comes to addressing issues - sugar, spice and everything nice usually will never enter the debate.

I am not here to defend Werz. He is quite capable of defending his turf. But, I'm surprised that he spent the time he did addressing the issue. There are very, very few that Werz will “duel” and from my reading he was conveying the message that he was not throwing down the gauntlet.

Look, the courts are political animals even though the judicial branch will deny it with impunity. Case in point FDR and our beloved commerce clause.

In closing, I'll repeat myself, it is what it is. And you ain't got a big enough army to make the change you are looking for.

This is just the way I see it.
 
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