Curious Case Of SCOTUS.

[Sonny Tufts]

What do you mean?

After the SCOTUS gave itself the power of judicial review, it was now able to move forward with its intended purpose:

To rubber stamp the increase in the size, power and scope of the federal government usually at the expense of individual liberties and in violation of the Constitution.

So on the one hand you complain that the Court has the power of judicial review. Then you complain that it doesn't strike down unconstitutional federal laws but rubber stamps them. Pray tell, without judicial review how could it declare a law unconstitutional?

[Swordsmyth]

What do you mean?

After the SCOTUS gave itself the power of judicial review, it was now able to move forward with its intended purpose:

To rubber stamp the increase in the size, power and scope of the federal government usually at the expense of individual liberties and in violation of the Constitution.

Answer the questions.
How are the courts to enforce the supreme law of the land if they are not allowed to declare unconstitutional laws to be null and void?
How is judicial review not contained in Article 6 which declare the Constitution to be the supreme law of the land and binding on the courts?
What would stop the legislative and executive branches from passing and enforcing unconstitutional laws if the courts refused to rule those laws unconstitutional?
How is a failure to overrule unconstitutional laws the result of the power to rule them unconstitutional rather than a failure to use that power correctly?

[Swordsmyth]

Yup this

That is self contradictory.
Please answer the questions in my post above this one.

[unknown]

A6:
This Constitution...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Why are you fighting FOR unconstitutional laws?
What use is any part of the Constitution if judges not only are not bound by it but are forced to not apply it?

If the SCOTUS actually offered Constitutionally based opinions, I probably wouldnt care about them granting themselves unconstitutional power.




Supreme Court Offers Opinion, Doesn’t Make Law

The Supreme Court was constructed to adjudicate law for specific cases, mostly disputes among states or situations in which the United States is a party.

The high court was assuredly never meant to override law or overturn state law, and even the proponents of judicial review in the ratification conventions never explained this power in relation to overturning state law.

How can I assert this with certainty? Because the Constitution’s biggest proponents assured us of this. The proof lies in the states, where the Constitution was defended against some of the most compelling attacks by the Brutus Writings, Patrick Henry, and other powerful voices of opposition.

These questions should have been answered when John Marshall refuted the apprehensions of George Mason during the Virginia Ratifying Convention.

Mason strongly condemned the Constitution because he believed it would allow the nationalists to exploit and annihilate the state courts. Mason said, “There is no limitation. It goes to every thing. The inferior Courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please.”[1]

Mason argued that the scope of the cases that would be taken up by the federal judiciary would be virtually unlimited, noting “When we consider the nature of these Courts, we must conclude, that their effect and operation will be utterly to destroy the state governments.

The next day, John Marshall disputed these sentiments, noting “The objection, which was made by the Honorable member who was first up yesterday (Mason) has been so fully refuted, that it is not worth while to notice it.”[2]

Thomas Jefferson:

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties.

Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

"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 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."

[TheTexan]

Answer the questions.
How are the courts to enforce the supreme law of the land if they are not allowed to declare unconstitutional laws to be null and void?
How is judicial review not contained in Article 6 which declare the Constitution to be the supreme law of the land and binding on the courts?
What would stop the legislative and executive branches from passing and enforcing unconstitutional laws if the courts refused to rule those laws unconstitutional?
How is a failure to overrule unconstitutional laws the result of the power to rule them unconstitutional rather than a failure to use that power correctly?

Rather than give the same answer for every question I'll just answer them all at once if you don't mind.

The problem with Judicial Review is not that the Supreme Court can declare things unconstitutional. The problem with Judicial Review is that the Supreme Court declared that they are the ultimate authority on whether things are unconstitutional.

Everyone who swears the oath has the responsibility to uphold the constitution, not just the supreme court. This oath was not intended to be delegated to the Supreme Court. But that is exactly what was allowed to occur.

The very concept of the Supreme Court being the "ultimate authority" is incompatible with the concept of sovereign states. When states lost their ability to make this judgement for themselves, they lost their sovereignty, and the sovereignty of the people, was lost with it.

As a result of this overstep in authority, the courts claimed for themselves limitless power. They declared nullification illegal. Secession, illegal. And it went downhill from there.

[Swordsmyth]

Rather than give the same answer for every question I'll just answer them all at once if you don't mind.

The problem with Judicial Review is not that the Supreme Court can declare things unconstitutional. The problem with Judicial Review is that the Supreme Court declared that they are the ultimate authority on whether things are unconstitutional.

Everyone who swears the oath has the responsibility to uphold the constitution, not just the supreme court. This oath was not intended to be delegated to the Supreme Court. But that is exactly what was allowed to occur.

The very concept of the Supreme Court being the "ultimate authority" is incompatible with the concept of sovereign states. When states lost their ability to make this judgement for themselves, they lost their sovereignty, and the sovereignty of the people, was lost with it.

As a result of this overstep in authority, the courts claimed for themselves limitless power. They declared nullification illegal. Secession, illegal. And it went downhill from there.

I can agree with that.
But eventually you have a single decider that everyone accepts or you get dissolution as multiple people insist that they have the final word and disagree, SCOTUS is best positioned to be the single decider in our current system.
Secession is a perfectly valid option but it should not be used over minor disputes.

[TheTexan]

I can agree with that.
But eventually you have a single decider that everyone accepts or you get dissolution as multiple people insist that they have the final word and disagree, SCOTUS is best positioned to be the single decider in our current system.
Secession is a perfectly valid option but it should not be used over minor disputes.

Everything worked fine when states did their own judicial review. I don't see any reason to fix what wasn't broken

[Occam's Banana]

But eventually you have a single decider that everyone accepts or you get dissolution as multiple people insist that they have the final word and disagree, SCOTUS is best positioned to be the single decider in our current system.
Secession is a perfectly valid option but it should not be used over minor disputes.

But who should properly get to decide what is a "minor" dispute, as distinct from a (non-"minor") dispute due to which secession may occur, if not one or more of the disputants themselves (rather than some third party "single decider" such as SCOTUS [1])?

If a dispute is significant enough that secession comes to be considered a necessary remedy by at least one of the disputants, then ipso facto, that dispute cannot be said to be "minor". Furthermore, if such a dispute really is considered to be "minor" by the party opposing secession, then that party should have little reluctance or difficulty in offering whatever terms of resolution are sufficient to mollify the would-be secessionists (and if the opponents of secession are not willing to offer such reconciliation, then ipso facto, the dispute once again cannot be said to be "minor"). IOW: If a dispute is truly "minor", then it will not lead to the possibility of secession - and if a dispute leads to the possibility of secession, then it is not truly "minor".

If disputants have reconcilable differences, then great! They can proceed to reconcile them (perhaps with the assistance of an agreed-upon third party mediator). But if their differences are irreconcilable (as judged by either or both parties to the dispute), then no third party "single decider" may properly dictate that they must remain bound to one another, but (at most) may arbitrate the terms of separation. IOW: Secession is a perfectly valid option and it should always be (permitted to be) used whenever any disputant deems it necessary. (Otherwise, there can be no real incentive for reconciliation.)



[1] And note that SCOTUS is only ostensibly a third party, since in any question of secession, SCOTUS would be an agency of one of the disputants (namely, the federal government, from which secession is being sought).

[Swordsmyth]

Everything worked fine when states did their own judicial review. I don't see any reason to fix what wasn't broken

That works for some questions.
But for others a single decision is required or secession is required.

[Swordsmyth]

But who should properly get to decide what is a "minor" dispute, as distinct from a (non-"minor") dispute due to which secession may occur, if not one or more of the disputants themselves (rather than some third party "single decider" such as SCOTUS [1])?

If a dispute is significant enough that secession comes to be considered a necessary remedy by at least one of the disputants, then ipso facto, that dispute cannot be said to be "minor". Furthermore, if such a dispute really is considered to be "minor" by the party opposing secession, then that party should have little reluctance or difficulty in offering whatever terms of resolution are sufficient to mollify the would-be secessionists (and if the opponents of secession are not willing to offer such reconciliation, then ipso facto, the dispute once again cannot be said to be "minor"). IOW: If a dispute is truly "minor", then it will not lead to the possibility of secession - and if a dispute leads to the possibility of secession, then it is not truly "minor".

If disputants have reconcilable differences, then great! They can proceed to reconcile them (perhaps with the assistance of an agreed-upon third party mediator). But if their differences are irreconcilable (as judged by either or both parties to the dispute), then no third party "single decider" may properly dictate that they must remain bound to one another, but (at most) may arbitrate the terms of separation. IOW: Secession is a perfectly valid option and it should always be (permitted to be) used whenever any disputant deems it necessary. (Otherwise, there can be no real incentive for reconciliation.)



[1] And note that SCOTUS is only ostensibly a third party, since in any question of secession, SCOTUS would be an agency of one of the disputants (namely, the federal government, from which secession is being sought).

I did not suggest some outsider or the other party could determine what was a minor issue.
I cautioned against using it for minor issues.
It is not unheard of for some malcontents to push for secession over minor issues.

[Occam's Banana]

I did not suggest some outsider or the other party could determine what was a minor issue.
I cautioned against using it for minor issues.
It is not unheard of for some malcontents to push for secession over minor issues.

There's no need to caution against it, because secession can't and won't be used for "minor" issues.

If an issue is truly "minor", then ipso facto, it won't lead to secession (no matter how hard any malcontents may push for it).

But if an issue does lead to secession (or to a significant possibility of it), then ipso facto, the issue is clearly not a "minor" one.

You and I might think that any given issue is a "minor" one, but if it actually results in (or increases the probability of) secession, then we will have been wrong.

[TheTexan]

That works for some questions.
But for others a single decision is required or secession is required.

As long as the courts realize that their "ultimate authority" cannot change the fact that member states participation in the union is voluntary and can be terminated at will, then I am fine with "judicial review".

[unknown]

If that be the case, and all else equal, then I would deem it a valid standard. But the yammer about "tradition" is idiotic on its face. Were I a justice and had allowed those flying things escape my yap, I'd resign on the spot for sheer shame and wear a paper bag over my head for the rest of my life, even in the house.

This is how the courts are able to commit their fraud, especially on constitutional "issues".

The answers are in the constitutional conventions/ratifying debates.

Which is why the fraudsters rarely mention them, atleast not in whole.

[osan]

This is how the courts are able to commit their fraud, especially on constitutional "issues".

The answers are in the constitutional conventions/ratifying debates.

Which is why the fraudsters rarely mention them, atleast not in whole.

Hs you any specific links perchance? I've not seen much on this prior and would be interested to learn what those boys had up their sleeves in those days.