Thom frequently goes off that the Supreme Court was NEVER meant to exercise Judicial Review over the constitutionality of federal laws. It was meant to be the final arbiter on disputes about trespassing cows. He claims judicial review is NOT in the Constitution but was create out of whole cloth by the Marshal court in Marbury v Madison. He goes on to quote Jefferson saying judicial review makes the Constitution a suicide pact.
I don't know what Constitution Thom is reading but the original Constitution seems pretty clear on the topic...
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.
The Marshal court didn't invent Judicial Review... it merely exercised and affirmed it. What is Thom thinking?
Comments
That has been going on fover that for years. Nothing you say will change his glorious talking point.
One does wonder who/where he derived this opinion from. doubtful it came out of a vacuum.
That has been going on fover that for years. Nothing you say will change his glorious talking point.
One does wonder who/where he derived this opinion from. doubtful it came out of a vacuum.
Jefferson wrote to Abigail Adams (wife of former President John Adams) in 1804:
"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
to Spencer Roane in 1819:
"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."
to William C. Jarvis in 1820:
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
and to Edward Livingstone in 1825:
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."
All of these comments were made during Chief Justice John Marshall's tenure (1803-1835) on the Supreme Court. Marshall and Jefferson were distant cousins who intensely disliked each other, although there is little documentation of public conflict between the two.
Jefferson's opposition to judicial review may seem odd in light of the Marshall Court's rulings, which often asserted the federal government's rights over states' rights under various constitutional provisions, including the Supremacy Clause and the Interstate Commerce Clause, which benefited Jefferson's administration. It is important to note, however, that Jefferson, a Democratic-Republican, had a radically different political philosophy from Marshall, a Federalist. Jefferson favored a less powerful central government and supported state sovereignty and individual liberties, while Marshall believed in a strong central government.
Read more: http://wiki.answers.com/Q/What_did_Thomas_Jefferson_say_about_judicial_review#ixzz20tjwwv5s
Thom frequently goes off that the Supreme Court was NEVER meant to exercise Judicial Review over the constitutionality of federal laws. It was meant to be the final arbiter on disputes about trespassing cows. He claims judicial review is NOT in the Constitution but was create out of whole cloth by the Marshal court in Marbury v Madison. He goes on to quote Jefferson saying judicial review makes the Constitution a suicide pact.
I don't know what Constitution Thom is reading but the original Constitution seems pretty clear on the topic...
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.
The Marshal court didn't invent Judicial Review... it merely exercised and affirmed it. What is Thom thinking?
This is the one time I agree with thom marberry vs Madison was an over reach that allowed the court to go from judging laws based on the constitution tointerpreting the constitution on the law.
Jefferson wrote to Abigail Adams (wife of former President John Adams) in 1804:
Scandelous...
Jefferson was in europe when the constitution was written. So his opinion on the matter is irrelevent
This is the one time I agree with thom marberry vs Madison was an over reach that allowed the court to go from judging laws based on the constitution tointerpreting the constitution on the law.
I haven't read anythin that would suggest that they created 3 co-equal branches of government. Executive can veto and SC can strike down. The system was designed with checks an balances. And you seriously believe they didn't intend the Supreme Court to have it own checks against the other branches.
This is the one time I agree with thom marberry vs Madison was an over reach that allowed the court to go from judging laws based on the constitution tointerpreting the constitution on the law.
I haven't read anythin that would suggest that they created 3 co-equal branches of government. Executive can veto and SC can strike down. The system was designed with checks an balances. And you seriously believe they didn't intend the Supreme Court to have it own checks against the other branches.
They can but within the constitution not interpreting the constitution and creating things like the right to privacy.
That has been going on fover that for years. Nothing you say will change his glorious talking point.
One does wonder who/where he derived this opinion from. doubtful it came out of a vacuum.
They can but within the constitution not interpreting the constitution and creating things like the right to privacy.
They can but within the constitution not interpreting the constitution and creating things like the right to privacy.
9th amendment. plus several constitutional forms that protected privacy. It wasn't created. General welfafre clause was created...
They can but within the constitution not interpreting the constitution and creating things like the right to privacy.
9th amendment. plus several constitutional forms that protected privacy. It wasn't created. General welfafre clause was created...
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I don't see privacy in here do you?[edit]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I don't see privacy in here do you"?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I don't see privacy in here do you?
Common.... Please... The last thing in this universe I want to do right at this moment is agree with Peirpont. So are so galactically wrong, you are giving conservatives a bad name. just walk away, pick you battles. fighting for the sack of fighting is futile.
Yes that's why the bill of rights was written.
So by your 13 year old "logic" NO rights existed before the Bill of Rights?
I can only imagine what sort of "liberty" they meant if there were no rights... not even for the Freemen... at least not until a few years latter when the Bill Of Rights was ratified.
So by your 13 year old "logic" NO rights existed before the Bill of Rights?
I can only imagine what sort of "liberty" they meant if there were no rights... not even for the Freemen... at least not until a few years latter when the Bill Of Rights was ratified.
So now your all for original intent didn't u laugh at me for bringing up the federalist papers? Let's be consistant are you for interpretation or strict original intent?
So now your all for original intent didn't u laugh at me for bringing up the federalist papers? Let's be consistant are you for interpretation or strict original intent?
I think the Borks and Scalia's already gave conservatives a bad name in this area. They want to limit rights they don't belive people should have, can never admit it, and they conceal their subversion of Original Intent by by inventing a the bogus theory of Originalism. Their hypocrisy is off the charts!
Thank god I don't have to agree with you anymore.
So now your all for original intent didn't u laugh at me for bringing up the federalist papers? Let's be consistant are you for interpretation or strict original intent?
No this goes to the heart of the issue what do you believe ?
"Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends."
https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
Scalia has plenty to say about the Ninth... here's his theory from Troxel v Granville
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=530&page=57
"...the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."
So instead of recognizing the People are sovereign and retain all rights not surrendered to the federal or their state government... he just denies those rights exist. Why? Because social conservatives want to use the Constitution to BLOCK rights they loathe... same sex marriage, the right to chose, etc.
What do you disagree with me on?
Every sentence you wrote.
Scalia is on record saying it is not the rule of the court to determine what rights are using their own personal list . That’s a bit different than your interpretation.
And Bork is correct.
As I said... just about every sentence
Yes, Bork and Scalia are the Sophists you wish you could be, Zeroman.
Sorry.... did you say something
Nothing your ideological filter will process. Continue in bliss.
Sorry.. can you speak up. the insignificance of you post is remarkable
Nothing I could possibly say could get through the shit between your ears. I have no interest in finding out or in giving you an ear cleaning.
Nothing I could possibly say could get through the shit between your ears. I have no interest in finding out or in giving you an ear cleaning.
Such fantastic imagery, completely devoid of any substance, but when your pool is that shallow, hard not to consider you mentally handicapped.
When one has walked through your muck on post after post, doing the scraping of the soles necessary becomes tedious. Imagine your superior self as much as you want. Close your eyes so the oncoming traffic does not scare you.
When one has walked through your muck on post after post, doing the scraping of the soles necessary becomes tedious. Imagine your superior self as much as you want. Close your eyes so the oncoming traffic does not scare you.
yup, still nothing, amazing one can produce so much vacious hot air and still function
What do you disagree with me on?
Every sentence you wrote.
Scalia is on record saying it is not the rule of the court to determine what rights are using their own personal list . That’s a bit different than your interpretation.
I have no idea what you just wrote.
The Ninth is one of the Rosetta Stones for deciphering the Constitution. It's a statement that the People as equal Sovereigns to the states retain all their rights as the states do… except those surrendered. There need be no exhaustive list of enumerated states rights when the Tenth is designed to cover them all. Same with the Ninth. To say it has no concrete meaning is absurd. For instance the right to fall in love, get married, have kids, build a home, get a job, run a business, are all UNenumerated but we know we have those rights. What then protects them?
Social conservatives like Scalia don't object to those rights. What they object to is certain minority groups getting uppity and using the Ninth to protect that which the Right doesn't approve of. It's an abuse of judicial power and it makes a mockery of the very concept of Original Intent. But then this is the court that ruled the Second was an individual right apart from the well regulated militia. As you may remember, my position is the right to own a firearm is protected by the Ninth.
"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
Sensing a pattern here yet Einstein? Scalia's philosophy is to restrict personal rights while expanding government powers. He hides his radical judicial activism behind the figleaf of "Originalism". So what does this say about those right wingers who want more Scalias on the court? We know they want to repress rights... but why do they want government freed from its defined powers?
Jefferson wrote...
to Spencer Roane in 1819:
...For experience has already shown that the impeachment it has provided is not even a scare-crow...
So increase the impeachments.
to Spencer Roane in 1819:
...For experience has already shown that the impeachment it has provided is not even a scare-crow...
So increase the impeachments.
That's just another of your empty assertions.
Was it a contest, I think you are still in the lead for vacuous hypebole.
There I fixed it for you.
Frankly I don't think you have ever read any of his opinions nor have the ability to grasp his intellect. Scalia would like nothing better that to put the federal government back in it box. And has concluded many times that to do so, would require a massive reversal of case law and instead relys upon judical precedent. The horse already left the barn. Go read his dissent on obamacare.
Your over use of Einstien really does make you look stupid...
That's just another of your empty assertions.
Was it a contest, I think you are still in the lead for vacuous hypebole.
There I fixed it for you.
Frankly I don't think you have ever read any of his opinions nor have the ability to grasp his intellect. Scalia would like nothing better that to put the federal government back in it box. And has concluded many times that to do so, would require a massive reversal of case law and instead relys upon judical precedent. The horse already left the barn. Go read his dissent on obamacare.
Your over use of Einstien really does make you look stupid...
Jefferson wrote...
to Spencer Roane in 1819:
...For experience has already shown that the impeachment it has provided is not even a scare-crow...
What strikes me about this remark, is that Jefferson apparently thinks that impeachment can be liberally invoked. I don't see any context in this remark that suggests that he thinks there are judges acting badly, and not being impeached In other words, it is my impression that Jefferson thinks judges can be impeached for lesser infractions
http://en.wikipedia.org/wiki/Impeachment_in_the_United_States
In writing Article II, Section Four, George Mason had favored impeachment for "maladministration" (incompetence), but James Madison, who favored impeachment only for criminal behavior, carried the issue.[3] Hence, cases of impeachment may be undertaken only for "treason, bribery and other high crimes and misdemeanors." However, some scholars, such as Kevin Gutzman, have disputed this view and argue that the phrase "high crimes and misdemeanors" was intended to have a much more expansive meaning.
The Congress traditionally regards impeachment as a power to use only in extreme cases; the House of Representatives has actually initiated impeachment proceedings only 62 times since 1789. Two cases did not come to trial because the individuals had left office.
Actual impeachments of 19 federal officers have taken place. Of these, 15 were federal judges: Thirteen district court, one court of appeals (who also sat on the Commerce Court), and one Supreme Court Associate Justice.
Frankly I don't think you have ever read any of his opinions nor have the ability to grasp his intellect. Scalia would like nothing better that to put the federal government back in it box. And has concluded many times that to do so, would require a massive reversal of case law and instead relys upon judical precedent. The horse already left the barn. Go read his dissent on obamacare.
Scalia isn't the person you and the GOP believe... here's a critique from the Right: http://www.fff.org/freedom/fd0206c.asp
Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. His point is painfully clear: the government can do anything unless the Constitution expressly forbids it. No surprise here; Scalia has long made his views known. They are horrifying nonetheless.
His views are based on an incorrect — indeed, a pernicious — notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty.
So Scalia is AGAINST the Ninth Amendment's protection of unenumerated rights and FOR a government that can do anything not prohibited. Is THAT the Constitution you know?
Thom has committed to the lesser evil arguement , [Obama is better than Romney .] despite mountains of evidence to the contrary . When he's soldiering for Obama he says silly things at times. Sadly this acts as a huge toll on his overall credibility.
There is nothing in Supreme Court Jurisprudence that gives the ninth amendment power. Therefore how could Scalia negate something that doesn't exist? Scalia is largely an isolated justice. While I enjoy discussion regarding conservative justices. How about those liberal Justice.... Is there nothing they will not capitulate? We need more conservative justices on the Supreme Court than perhaps you will get you substantive 9th amendment. Vote Romney...
So Scalia is AGAINST the Ninth Amendment's protection of unenumerated rights and FOR a government that can do anything not prohibited. Is THAT the Constitution you know?
Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure
This is why the first part of your article is correct. " JUSTICE ANTONIN SCALIA is probably the smartest man on the Supreme Court."
It can be done via already established powers. Art 1, sec 8 "To establish an uniform Rule of Naturalization" and Via Commerce clause.
Try again...
Back to your amusing claim that we can never know what's constitutional unless it's ruled on by the federal courts? ROTF. Yup, the words of the Constitution itself don't matter as much as a legal interpretation of them. So if there's little caselaw regarding some aspect of the Constitution, we're safe in assuming those sections are meaningless… and this attack should be led by those on the Right who claim to revere Original Intent. Gee, aren't you really saying you and they only revere contemporary legal interpretations?
I think it is safe to say you care little of the judicial history or even the 9th itself. You enjoy Scalia bashing as if Scalia was the almighty pinnacle of conservative. You clearly do not have the intellectual chops required to understand Scalia and all you want to do is burn him and his "originalism" down. If you truly coveted the 9th amendment as Holy Scripture in light of its horrifyingly vague "inkblot" that would take judicial activism to staggering heights. You would be Libertarian.
If you like the 9th, you should enjoy Scalia's majority mention of it in Heller.
"The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right."
Cap, as a Scholastic pinhead dancer, you are among the angels. It is fascinating to watch you weave your patterns of trivia and metaphysics together to prove the irrelevant. "Individual rights" are not spoken of in the Constitution as individual, not collective.
I guess this means if we have a right to healthcare, it would have to be individuals seeking to get their own individual healthcare without someone with a badge stopping them. All they would need is the money and the goodwill of the medical providers. Or, the "right" could be to have one's money taken on demand for healthcare. If you have the money, they cannot discriminate against you for other reasons.
Or, does it mean that each and every human being is a member of the human family with an individual birthright (human rights) that is universal but individually allocated? The question becomes, if we all have an individual human right to healthcare, or to liberty and justice, can we throw in together to realize the synergies and efficiencies of our collective investments?
I think this is all that is involved in treating the individual right to healthcare within the "common good" and "general welfare" without any confusion about individual and collective "rights." The latter can only be the universality of the individual rights; but the collective structure and establishment of those human rights can be the best way to make it happen. As with military defense, as with the generation of power, collective ownership and management beats voluntary individual participation and its demands for constant decision-making and ratification. What is at issue is not the popular will or the coercive nature of interdependence. It is the mechanism of voluntarism that is impractical.
The Founders were not dolts about institutions. They intentionally gave us guidelines and a vision instead of a revelation of Holy Writ and "Originalism." It was a political compromise hammered out in the heat of summer with all the ambiguities of context and time of any period of history. It was an early plan for a "democracy."
I think we need to do a lot of rethinking about our governmental design and procedures, and I am glad that conversation will include history wonks and constitutional scholars who can show us the best and the worst in real world context. I think we will like the Founders a lot better than we will the Supremes who could not help avoid the Civil War and gave the country away to Money after the North won. I hope we reflect on how long it has taken us to get part of the way out of slavery and segregation and what that really has to say about our "exceptionalism."
Again, what matters is so much bigger than the point you are flogging to death. Dance away tiny dancer.
Back to your amusing claim that we can never know what's constitutional unless it's ruled on by the federal courts? ROTF. Yup, the words of the Constitution itself don't matter as much as a legal interpretation of them. So if there's little caselaw regarding some aspect of the Constitution, we're safe in assuming those sections are meaningless… and this attack should be led by those on the Right who claim to revere Original Intent. Gee, aren't you really saying you and they only revere contemporary legal interpretations?
I think it is safe to say you care little of the judicial history or even the 9th itself. You enjoy Scalia bashing as if Scalia was the almighty pinnacle of conservative. You clearly do not have the intellectual chops required to understand Scalia and all you want to do is burn him and his "originalism" down.
I never said Scalia wasn't brilliant. But it doesn't take much insight to see that he used that brilliance to undermine those aspects of the Constitution that conflict with his political and social views. He's not a true Originalist. He's highly selective about what in the Constitution he respects and what sections he's willing to bastardize.
As for Libertarianism, how many times have I stated that I favor the construction of the French Rights of Man to the Bill of Rights... in essence... freedom is the ability to do anything that doesn't hurt another. That doesn't mean I don't have an expansive view of "harm" or that I don't support safety net programs. Why do you assume everyone must think only along straight and narrow traditional lines as you do?
So by your 13 year old "logic" NO rights existed before the Bill of Rights?
I can only imagine what sort of "liberty" they meant if there were no rights... not even for the Freemen... at least not until a few years latter when the Bill Of Rights was ratified.
So now your all for original intent didn't u laugh at me for bringing up the federalist papers? Let's be consistant are you for interpretation or strict original intent?
Could you please speak up? the insignicance of your post make it impossible to read.
Henry Kissinger was also brilliant, but that doesn't mean he's exempt from charges of being amoral. HE WAS! His Realpolitik approach was an amoral foreign policy.
Ahhhh,.... Intellect and Morality are two entirely different concepts. moving on...
Show me the quote of Scalia claiming he is a "True Originalist". So essentially you've arbitrarily place Scalia on an impossible pedestal that no other justices occupy’s, Then whine that he doesn’t live up to your expectations. Otherwise known as a Strawman.
I'm sure Scalia is far smarter than you and I put together. Before we discuss the rights we are not sure we have.... Put into persceptive the rights we are absolutely sure we have. Freedom of speech, Except not entirely free. Subject to Time Place and Manner. Right to Bear Arms.... Not absolute. Subject to Time Place and Manner. Right to assemble.... Can't do that just anywhere.. 4th amendment is eroding faster than a salt lick in the rain. The liberal Supreme Court bent the 5th amendment over and barrel and really took it to it.
So while you dream off rights that your not sure whether you have or not.... I 'm alittle more concerned with the ones I had and are currently losing.