Is it time for Americans to reconsider the principle of Judicial Review?

[glenn1]

Ever since the days of Marbury v. Madison in 1803, the courts have assumed the role in the U.S. government of having the position of being the final interpreter and arbiter of the Constitution (and the constitutionality of laws passed by the legislative branch).

Nowhere in the Constitution or anywhere else is this principle codified, it's simply been the working agreement our government has worked under for the last 200 years. Congress could quite easily do away with the principle of judicial review, and it would be completely constitutional.

In light of judicial activism and judicial fiat legislation over the last few decades, is it time for Americans to reconsider the role of the judiciary in today's government? Dozens of instances can be cited where the judiciary has clearly overstepped into what are patently legislative issues, such as (but not limited to) Roe v. Wade, Newdow v. US Congress (the 9th circuit pledge of allegiance case), Gore v. Bush, etc., all disputes which should have never come to the judiciary docket.

 

[gopunk]

frankly, i trust the justice system more than politicians. the justice system tends to give a more just decision, one that is based on laws, whereas politicians just do whatever the hell they feel like.

 

[yellowperil]

Without judicial review, who's going to hold legislative powers in check? There's not a statute for every situation. The main point of the judicial system is to sort out ambiguities in the law.

 

[gopunk]

Originally posted by: yellowperil
Without judicial review, who's going to hold legislative powers in check? There's not a statute for every situation. The main point of the judicial system is to sort out ambiguities in the law.

no kidding.. and is there ever a time when the justice system is more important... what with republicans running on the loose and stuff. i don't want republicans just having free reign over this land.

 

[glenn1]

Without judicial review, who's going to hold legislative powers in check?

That who is called voters.

what with republicans running on the loose and stuff. i don't want republicans just having free reign over this land.

And republicans could say the same thing, but in times where the government has been run by essentially one party (control of the white house and Congress), the world didn't explode. And it wouldn't if we revoked judicial review either.

And BTW, the system i propose is exactly what's in place in Great Britain. The Parliament is the ultimate interpreter and arbiter of the government powers there, and life seems to go on just fine.

 

[Cyberian]

no kidding.. and is there ever a time when the justice system is more important... what with republicans running on the loose and stuff. i don't want republicans just having free reign over this land.

You mean people like Toricelli and his kind?

 

[charrison]

It is time to impeach judges that write laws from the bench.


So tell me which laws do you want liberally interpreted?

Maybe the speed limit? 55 is not really 55?
3 year for stealing a car is not really 3 years?
Maybe the drug laws? they really did mean pot did they?
I am sure evert minor think they dont actually need to be 21 to drink or 18 to smoke?

Our country is doomed if we go running the courts everytime there is election problem because of interpretations of CLEAR law.

 

[gopunk]

Originally posted by: glenn1

Without judicial review, who's going to hold legislative powers in check?

That who is called voters.

i don't think that would work very well. i just don't trust the common idiot to make good decisions regarding these types of things.

what with republicans running on the loose and stuff. i don't want republicans just having free reign over this land.

And republicans could say the same thing, but in times where the government has been run by essentially one party (control of the white house and Congress), the world didn't explode. And it wouldn't if we revoked judicial review either.

the world's not going to explode, but lawmakers would make laws that are against the constitution and nobody would be there to stop them.

And BTW, the system i propose is exactly what's in place in Great Britain. The Parliament is the ultimate interpreter and arbiter of the government powers there, and life seems to go on just fine.

if i wanted to live in GB, i would move there.

 

[tweakmm]

Originally posted by: yellowperil
Without judicial review, who's going to hold legislative powers in check?

special interest groups
who else?

 

[glenn1]

i don't think that would work very well. i just don't trust the common idiot to make good decisions regarding these types of things.

Your words, not mine. So since you don't believe in democracy, what form of government do you think the U.S. should have?

the world's not going to explode, but lawmakers would make laws that are against the constitution and nobody would be there to stop them.

Someone's gotta be ultimately responsible to see that laws are constitutional. In your worldview, you prefer that someone to be unelected judges appointed for life. In my worldview, i see it as being the lawmakers elected by those "common idiots" you talk about.

if i wanted to live in GB, i would move there.

Good comeback

So i guess if i told you that the ideas for the Declaration of Independence, Constitution, and Federalist Papers all came from primarily British and French enlightenment thinking, you'd say that if you wanted to live in Great Britain, you'd move there? Or are you so obtuse that you think that someone from another place came up with a good idea, we can't use it here, that we should all move to where the person who thought up the good idea lives?

 

[wyvrn]

Judicial review came around by neccessity. It wasn't a power granted by the constitution, but the constitution as originally written was NOT a perfect document. It's a good base from which to work. The reason we have not amended the constitution to give the Supreme Court the express power of judicial review is because most amendments never make it past congress or get the neccessary states' ratification. Over 40,000 constitution amendments have been officially submitted on the floor of congress, and only 27 have been ratified. 10 of those are the Bill of Rights which were added due to Anti-Federalist party pressures. Two other amendments dealing with prohibition cancelled each other out. The prohibition amendments were the only ones that tried to legislate morality through the constitution. What's left is 15 amendments in over 200 years of government.

Yes we could do away with judicial review, but thats a rash move that would no doubt add instability into our government. Especially now with economic uncertainty and impending war, thats a BAD idea. Now if you want to modify judicial review and submit an amendment, go ahead. But you have roughly a 1.5% chance of it passing, based on past successes.


edit: my mistake, but you could be a bit more accepting of other's views

 

[gopunk]

Your words, not mine. So since you don't believe in democracy, what form of government do you think the U.S. should have?

the salem witchtrials came out of majority rules. just remember that... only a fool would insist on pure democracy. i think the form of government we have is fine: federal republic.

Someone's gotta be ultimately responsible to see that laws are constitutional. In your worldview, you prefer that someone to be unelected judges appointed for life. In my worldview, i see it as being the lawmakers elected by those "common idiots" you talk about.

well, yes. i am usually in agreement with the supreme court, and i happen to believe they do a fine job of upholding the constitution and protecting it from the dolts we elect.

Good comeback

So i guess if i told you that the ideas for the Declaration of Independence, Constitution, and Federalist Papers all came from primarily British and French enlightenment thinking, you'd say that if you wanted to live in Great Britain, you'd move there? Or are you so obtuse that you think that someone from another place came up with a good idea, we can't use it here, that we should all move to where the person who thought up the good idea lives?

you're right, that was a lame comeback. anyways, what makes you so sure it's a good idea?

 

[A5]

Originally posted by: gopunk

Originally posted by: glenn1

Without judicial review, who's going to hold legislative powers in check?

That who is called voters.

i don't think that would work very well. i just don't trust the common idiot to make good decisions regarding these types of things.

We have a Federalist in our midst! (Sorry, got AP History on the brain )

Congress could quite easily do away with the principle of judicial review, and it would be completely constitutional.

But guess what would happen when the law was appealed to the Supreme Court? They would cite the precedent of Marbury v. Madison, and would overturn the law based on that principle. The only way you could elimnate judicial review would be through an Amendment to the Constitution.

 

[glenn1]

We have a Federalist in our midst! (Sorry, got AP History on the brain )

Yep, guilty as charged

I'm also a Libertarian, so that makes me twice as weird

 

[Evadman]

Originally posted by: glenn1

We have a Federalist in our midst! (Sorry, got AP History on the brain )

Yep, guilty as charged

I'm also a Libertarian, so that makes me twice as weird

What because you orginize books with the Dewie Decimal System?

 

[cmdavid]

its their only check over both executive and legislative branchess.. simple stuff form polisci 1101...

 

[Moonbeam]

We need to stop confirming activist conservative judges which is pretty much what all of them are.

 

[A5]

Originally posted by: glenn1

We have a Federalist in our midst! (Sorry, got AP History on the brain )

Yep, guilty as charged

I'm also a Libertarian, so that makes me twice as weird

Actually, I was referring to gopunk . To me, you come off as more of a Democratic-Republican, with your strict interpretation of the Constitution and trust in the common voter.

I meant post-Constitution Federalists.

 

[charrison]

Originally posted by: Moonbeam
We need to stop confirming activist conservative judges which is pretty much what all of them are.

For a second I thought I was in agreement with you. There are activist judges on both sides, not just conservates ones. The NJSC is made of 5 democrats and 2 republicans. The vote was 7-0 to override the the election laws. All of these judges are activists.

 

[glenn1]

Quote

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Originally posted by: Moonbeam
We need to stop confirming activist conservative judges which is pretty much what all of them are.
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For a second I thought I was in agreement with you. There are activist judges on both sides, not just conservates ones. The NJSC is made of 5 democrats and 2 republicans. The vote was 7-0 to override the the election laws. All of these judges are activists.

If you expand your definition to activist judges of all viewpoints (liberal, conservative, whatever flavor) i'll agree with you, Moonie. A Warren Burger activist Supreme Court passing down a decision like Roe v. Wade is just as dangerous as a Rehnquist court passing down a Gore v. Bush decision. Either way, the judiciary is creating fiat law.

 

[rahvin]

Judicial review is nothing more than the courts reviewing a law to see if it conflicts with the consitution. If it does the powers granted to the courts by the constitution allow them to refuse to uphold the law. That is all judicial review is, the courts refusing to enforce a law because it violates the tennets of the consitution. Without judicial review we wouldn't be free anymore, congress would have legislated away all our constitutional rights a LONG time ago. Do you think for a minute congress wouldn't have banned all guns if the supreme court wasn't there to tell them to keep their hands off?

 

[yellowperil]

Originally posted by: glenn1

Without judicial review, who's going to hold legislative powers in check?

That who is called voters.

That would be a corrupt legislator's wet dream. Voters just aren't informed enough about the issues. Not only because of ignorance, but because the general populace can't devote their entire lives studying the implications of social policy. I think the average Joe Sixpack is going to be swayed more by the prevailing social climate than by any rational basis. Not to mention the peoples' chance to 'veto' lawmakers comes only every couple years, and even then, voters have incredibly short memories and often vote based on name recognition alone

 

[Moonbeam]

My point, glenn1, is that every action a court takes that is contrary to a person's point of view always looks like activism to that person. The court decided Roe correctly and the Florida election wrong. It's very simple.

 

[CJZ]

Originally posted by: Moonbeam
My point, glenn1, is that every action a court takes that is contrary to a person's point of view always looks like activism to that person. The court decided Roe correctly and the Florida election wrong. It's very simple.

Couldn't have said it better myself.

 

[charrison]

Originally posted by: CJZ

Originally posted by: Moonbeam
My point, glenn1, is that every action a court takes that is contrary to a person's point of view always looks like activism to that person. The court decided Roe correctly and the Florida election wrong. It's very simple.

Couldn't have said it better myself.

Florida was incorrectly decided and went against every florida election law that was on the books. Have the court create new election laws is only going to create ill will for the people. When the court decides who won or who should be on the ballet, the peoples will is invalidated. The SCONJ is going to be overturned by SCOTUS for the same reason the SC of FLorida: you cant make election law, that is the legislatures power. And people like moonbeam are going to be bitter because justice was not done.

If you are going to have the party replace a candidate because they are losing at the last minute, why bother having primarys so the people can pick who gets to the be on the ballot.


I fear that the courts will be involved in every election from now on
:frown: