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Reply #14


Response to rhett o rick (Reply #11)

Sun Dec 23, 2012, 12:10 AM

14. It all begins in 1803

 

The case of Marbury vs Madison dealt with two important questions;

1) Does the supreme have the power of judicial review? The english courts did not have this power and the writers of the consitution debated but never answered that question. So, the court took that power to itself. Congress has essentially ratified that act for 209 years by not acting to counter it. Without that power, the system of checks and balances we were taught as children does not exist. More importantly, without that power, question 2 could not be answered.

2) Article VI states "This Constitution, and the Laws of the United States ... shall be the supreme law of the land" Today we readily take that to mean the Constitution AND THEN the federal laws are supreme. When Marbury vs Madison was decided this was not clear. Some argued that the constitution and federal law were on the same level. The court reasoned that the Constitution must take precedence over federal law or be rendered and impotent piece of paper.

Jefferson was furious about the case. He believed that constitutional interpretation was the sole providence of the EXECUTIVE branch.

The OP is positing that the Courts alter the constitution. This is not the case. The courts deal in questions that fall into spaces where disputes arise as to the interpretation. He is positing that the court can simply sweep amendments aside. It can not. Citizens United et al are terrible decisions but they do not alter the constitution. The Supreme Court decision in 2000 had the effect of handing Bush the presidency, but they did not decide the election. They decided a technical question about how the recount would be conducted.

These arguments about activists judges and "judge made law" are usually right wing arguments aimed at undoing the power of judicial review. This, apparently, is actually what the right wants according to some I've talked to. The irony is that if they eliminate judicial review, they also eliminate constitutional supremacy which they favor.

Our judicial system is imperfect and wildly misunderstood by the public but it is nowhere near as broken as the right or this OP would claim.

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MightyMopar Dec 2012 OP
libdem4life Dec 2012 #1
jody Dec 2012 #2
samsingh Dec 2012 #3
MightyMopar Dec 2012 #5
X_Digger Dec 2012 #10
MightyMopar Dec 2012 #15
gcomeau Dec 2012 #26
graham4anything Dec 2012 #29
beevul Dec 2012 #30
graham4anything Dec 2012 #31
X_Digger Dec 2012 #33
Major Nikon Dec 2012 #32
white_wolf Dec 2012 #27
jody Dec 2012 #38
white_wolf Dec 2012 #40
jody Dec 2012 #41
white_wolf Dec 2012 #42
jody Dec 2012 #43
white_wolf Dec 2012 #44
jody Dec 2012 #45
white_wolf Dec 2012 #47
jody Dec 2012 #48
IDoMath Dec 2012 #4
MightyMopar Dec 2012 #6
IDoMath Dec 2012 #7
MightyMopar Dec 2012 #8
IDoMath Dec 2012 #9
rhett o rick Dec 2012 #11
LineLineLineLineLineReply It all begins in 1803
IDoMath Dec 2012 #14
rhett o rick Dec 2012 #18
IDoMath Dec 2012 #19
rhett o rick Dec 2012 #34
IDoMath Dec 2012 #35
rhett o rick Dec 2012 #36
rhett o rick Dec 2012 #12
MightyMopar Dec 2012 #13
IDoMath Dec 2012 #16
rhett o rick Dec 2012 #17
X_Digger Dec 2012 #20
IDoMath Dec 2012 #21
X_Digger Dec 2012 #22
IDoMath Dec 2012 #23
friendly_iconoclast Dec 2012 #24
friendly_iconoclast Dec 2012 #25
white_wolf Dec 2012 #28
Eleanors38 Dec 2012 #37
MightyMopar Dec 2012 #39
1-Old-Man Dec 2012 #46
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