Is Judicial Review Constitutional?

[Free Palestine]

...

[Obnoxiously Slutty Girly Girl]

No, its extra-constitutional nonsense that has been used to enable tyranny.

[Kaine for Senate '18]

It's a key part of the Government - absolutely.

[I spent the winter writing songs about getting better]

No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

[Free Palestine]

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

[Obnoxiously Slutty Girly Girl]

No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

Indeed.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/A_%26_M_Records,_Inc._v._Napster,_Inc.
http://en.wikipedia.org/wiki/Roe_v._Wade
http://en.wikipedia.org/wiki/Bush_v._Gore
http://en.wikipedia.org/wiki/Illinois_v._Caballes
http://en.wikipedia.org/wiki/Board_of_Education_v._Earls
http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista
http://en.wikipedia.org/wiki/Oliver_v._United_States
http://en.wikipedia.org/wiki/United_States_v._Ross
http://en.wikipedia.org/wiki/Terry_v._Ohio

[Free Palestine]

No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

Indeed.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/A_%26_M_Records,_Inc._v._Napster,_Inc.
http://en.wikipedia.org/wiki/Roe_v._Wade
http://en.wikipedia.org/wiki/Bush_v._Gore
http://en.wikipedia.org/wiki/Illinois_v._Caballes
http://en.wikipedia.org/wiki/Board_of_Education_v._Earls
http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista
http://en.wikipedia.org/wiki/Oliver_v._United_States
http://en.wikipedia.org/wiki/United_States_v._Ross
http://en.wikipedia.org/wiki/Terry_v._Ohio

Don't forget this one:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

[Obnoxiously Slutty Girly Girl]

No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

Indeed.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/A_%26_M_Records,_Inc._v._Napster,_Inc.
http://en.wikipedia.org/wiki/Roe_v._Wade
http://en.wikipedia.org/wiki/Bush_v._Gore
http://en.wikipedia.org/wiki/Illinois_v._Caballes
http://en.wikipedia.org/wiki/Board_of_Education_v._Earls
http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista
http://en.wikipedia.org/wiki/Oliver_v._United_States
http://en.wikipedia.org/wiki/United_States_v._Ross
http://en.wikipedia.org/wiki/Terry_v._Ohio

Don't forget this one:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Of course, there are tons more that could be cited, but I'm sure BRTD thinks a case like that abusing the Constitution's language to expand government power over the economy was a good thing.

[True Federalist (진정한 연방 주의자)]

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?

[Obnoxiously Slutty Girly Girl]

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?

It's the duty of the states and of the people to hold the federal government in line, not another tentacle of the federal government itself.

[Free Palestine]

No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

Indeed.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/A_%26_M_Records,_Inc._v._Napster,_Inc.
http://en.wikipedia.org/wiki/Roe_v._Wade
http://en.wikipedia.org/wiki/Bush_v._Gore
http://en.wikipedia.org/wiki/Illinois_v._Caballes
http://en.wikipedia.org/wiki/Board_of_Education_v._Earls
http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista
http://en.wikipedia.org/wiki/Oliver_v._United_States
http://en.wikipedia.org/wiki/United_States_v._Ross
http://en.wikipedia.org/wiki/Terry_v._Ohio

Don't forget this one:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Of course, there are tons more that could be cited, but I'm sure BRTD thinks a case like that abusing the Constitution's language to expand government power over the economy was a good thing.

That case is pure Rube Goldberg logic.

[True Federalist (진정한 연방 주의자)]

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?

It's the duty of the states and of the people to hold the federal government in line, not another tentacle of the federal government itself.

State nullification would lead inevitably to either a change from a Federal to a National government or the dissolution of the Union.  It gives the States too much power.

The people can either vote or rebel, but neither approach is capable of dealing with specific instances as judicial review can, nor can either approach work quickly. (Not that the courts usually work fast either, but they can on occasion.)

[Bo]

Yes.

[Uncle Albert/Admiral Halsey]

It's necessary, though like anything else it can certainly be abused. I'm not convinced of its constitutionality, though.

[Deldem]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

[The Mikado]

I find it hard to find something that's gone pretty much unchallenged except by the fringiest types for over two centuries unconstitutional.  Unless you think you know the Constitution better than several hundred Supreme Court Justices.

[Obnoxiously Slutty Girly Girl]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

[Uncle Albert/Admiral Halsey]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

I just said that I thought judicial review was necessary. Don't say that I'm not convinced that judicial review is unconstitutional because I don't like it. That's an outright smear and intellectually dishonest. And if you're not talking to me, Deldem, well, forget I said anything.

Anyway, the reason why I'm not convinced is because the power of judicial review was never expressly mentioned in the Constitution. And powers "not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," as the tenth amendment stated. The real reason why we have judicial review is because of the precedent John Marshall set in Marbury v. Madison

Realize that why I may hold my Constitutional reservations, I in no way shape or form recommend ending judicial review, though I believe judges should be careful and use judicial review only when necessary.

[True Federalist (진정한 연방 주의자)]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

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Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.

[Obnoxiously Slutty Girly Girl]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

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Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.

The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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."
--Thomas Jefferson

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”

[Napoleon XIV]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

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Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.

The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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."
--Thomas Jefferson

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”

If Mr. Madison had doubts post hoc, he certainly did not write them into the Constitution.  Nor did Jefferson, seeing as how he was in Paris at the time of drafting.

With or without the Judiciary Act, the power was there.  Now, we can disagree as to the scope or what should be done with it (or whether Congress should restrict it, as they can), but it's rather silly to argue it doesn't exist.  It's there either by design or mistake, but it is there.

[Obnoxiously Slutty Girly Girl]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

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Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.

The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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."
--Thomas Jefferson

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”

If Mr. Madison had doubts post hoc, he certainly did not write them into the Constitution.  Nor did Jefferson, seeing as how he was in Paris at the time of drafting.

With or without the Judiciary Act, the power was there.  Now, we can disagree as to the scope or what should be done with it (or whether Congress should restrict it, as they can), but it's rather silly to argue it doesn't exist.  It's there either by design or mistake, but it is there.

Uh, the power didn't and doesn't exist in the Constitution. They didn't write into the Constitution. It's not there.

[True Federalist (진정한 연방 주의자)]

"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."
--Thomas Jefferson

Jefferson also doubted whether the Louisiana Purchase would be Constitutional without an Amendment.  Shall we give that back to France, the Mexican Cession and the Gadsen Purchase back to Mexico, Alaska back to Russia, etc. because Jefferson said so?

The fact is that Jefferson was no paragon of Constitutional virtue.  He routinely decried actions as unconstitutional before he was President that he would undertake the equivalent or worse once he was President.  Jefferson was no Constitutionalist, he was a political hack of the first order who wrote some eloquent phrases that he paid attention to only when it was convenient.

[Obnoxiously Slutty Girly Girl]

"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."
--Thomas Jefferson

Jefferson also doubted whether the Louisiana Purchase would be Constitutional without an Amendment.  Shall we give that back to France, the Mexican Cession and the Gadsen Purchase back to Mexico, Alaska back to Russia, etc. because Jefferson said so?

The fact is that Jefferson was no paragon of Constitutional virtue.  He routinely decried actions as unconstitutional before he was President that he would undertake the equivalent or worse once he was President.  Jefferson was no Constitutionalist, he was a political hack of the first order who wrote some eloquent phrases that he paid attention to only when it was convenient.

That Jefferson was flawed as a president does not change the fact that, at least in his words, he certainly was a Constitutionalist, knowledgeable about how the Constitution was intended to be interpreted from an original intent perspective.

[Free Palestine]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

The Constitution doesn't work like that.  It is a set of few delegated powers.  If something doesn't violate the Constitution or isn't specified, it isn't automatically constitutional.  Using that reasoning, we might as well not have a Constitution at all.

This is Article III of the Constitution:

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I see nothing in there that gives the Supreme Court the power to stealth-amend the Constitution.  I am not saying judicial review is unconstitutional because I don't like it, but because it is unconstitutional.