Is Judicial Review Constitutional?

[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.

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.

I was directing it towards Libertas, not you. It's all good though, I understand your reasoning, though I certainly disagree with it.

The way I look at the Constitution is that it is a basic framework of government, not the entire government- just because something is not included in there does not mean it is forbidden. I think True Federalist also has done a good job pointing out why judicial review works, so I won't repost everything he just said.

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.

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

[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.

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.

I was directing it towards Libertas, not you. It's all good though, I understand your reasoning, though I certainly disagree with it.

The way I look at the Constitution is that it is a basic framework of government, not the entire government- just because something is not included in there does not mean it is forbidden. I think True Federalist also has done a good job pointing out why judicial review works, so I won't repost everything he just said.

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

[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.

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

Most of those were simply cases where they refused to strike down tyranny. A shame yes, but there would've been no chance to repeal it in the first place without judicial review.

Without judicial review we'd probably have as much censorship and prudery as in Australia.

[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.

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.

I was directing it towards Libertas, not you. It's all good though, I understand your reasoning, though I certainly disagree with it.

The way I look at the Constitution is that it is a basic framework of government, not the entire government- just because something is not included in there does not mean it is forbidden. I think True Federalist also has done a good job pointing out why judicial review works, so I won't repost everything he just said.

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

It's not in contrast with all the Founding Fathers. My position is quite similar to the Federalist Party of Washington and Hamilton. They, for example, supported a national bank, though it was not in the Constitution directly.

Though Jefferson, and to a lesser extent Madison, whined about how unconstitutional various actions were, they would engage in most everything they criticized when they were presidents. Plus, Jefferson's view on the Constitution is irrelevant, seeing as he didn't go to the Constitutional Convention.

[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.

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.

That's the most irritating thing about hyper-libertarians.  Their selective application of history and principle only when it suits them, and dismissing them as irrelevant when it doesn't support them.  They also tend to refuse to answer questions when they don't like the answer a consistent application of the principles they claim to hold would provide.

To repeat the question I put to you:
Shall we give the Louisiana Purchase back to France, the Mexican Cession and the Gadsen Purchase back to Mexico, Alaska back to Russia, etc. because there is nothing in the Constitution that authorizes the acquisition of new territory?

[Free Palestine]

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

One example I can think of is the Noise Control Act of 1972, which puts federal regulations on noise pollution.  Nowhere in the Constitution is Congress given the delegated power to regulate noise pollution, unless of course you use a silly interpretation of the General Welfare Clause or the Commerce Clause.  Pretty much anything the U.S. government does that is not justified by a delegated power is unconstitutional.

Notice that the Tenth Amendment says that all powers not delegated to the federal government are reserved for the states.  Pretty much pokes a hole in the ludicrous argument that the federal government is free to do what it wants as long as it doesn't violate any part of the Constitution.

[True Federalist (진정한 연방 주의자)]

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

One example I can think of is the Noise Control Act of 1972, which puts federal regulations on noise pollution.  Nowhere in the Constitution is Congress given the delegated power to regulate noise pollution, unless of course you use a silly interpretation of the General Welfare Clause or the Commerce Clause.  Pretty much anything the U.S. government does that is not justified by a delegated power is unconstitutional.

Notice that the Tenth Amendment says that all powers not delegated to the federal government are reserved for the states.  Pretty much pokes a hole in the ludicrous argument that the federal government is free to do what it wants as long as it doesn't violate any part of the Constitution.

That Act invokes the Commerce Clause in a now standard fashion.  Indeed, since it pertains to actual items of commerce, it's less obnoxious than a lot of Commerce Clause law.

However, while I agree that the Commerce Clause has been abused, I don't agree with the interpretation some hyper-constructionists try to place on the Commerce Clause which makes it nothing more than a restatement of the Necessary and Proper Clause as applied to Article I Section 10 Clause 2.

That's throwing out the baby with the bathwater, in my opinion.  If the hyper-constructionist opinion on the Commerce Clause ever did get adopted by the Supreme Court, then we'd need a new Amendment to restore the current jurisprudence for the most part.  Setting standards for items of Commerce is something that the Federal government should be doing.

[Free Palestine]

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

One example I can think of is the Noise Control Act of 1972, which puts federal regulations on noise pollution.  Nowhere in the Constitution is Congress given the delegated power to regulate noise pollution, unless of course you use a silly interpretation of the General Welfare Clause or the Commerce Clause.  Pretty much anything the U.S. government does that is not justified by a delegated power is unconstitutional.

Notice that the Tenth Amendment says that all powers not delegated to the federal government are reserved for the states.  Pretty much pokes a hole in the ludicrous argument that the federal government is free to do what it wants as long as it doesn't violate any part of the Constitution.

That Act invokes the Commerce Clause in a now standard fashion.  Indeed, since it pertains to actual items of commerce, it's less obnoxious than a lot of Commerce Clause law.

However, while I agree that the Commerce Clause has been abused, I don't agree with the interpretation some hyper-constructionists try to place on the Commerce Clause which makes it nothing more than a restatement of the Necessary and Proper Clause as applied to Article I Section 10 Clause 2.

That's throwing out the baby with the bathwater, in my opinion.  If the hyper-constructionist opinion on the Commerce Clause ever did get adopted by the Supreme Court, then we'd need a new Amendment to restore the current jurisprudence for the most part.  Setting standards for items of Commerce is something that the Federal government should be doing.

The arguments used to justify things such as this with the Commerce Clause are just downright silly.  That's like saying I am guilty of child abuse because I didn't give money to the Nation of Islam guy supposedly collecting donations for Haiti in the vicinity of my school.

[WillK]

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?

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

This gives the Court authority to rule on the Law of a case, not just the facts of a case. 

[I spent the winter writing songs about getting better]

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

One example I can think of is the Noise Control Act of 1972, which puts federal regulations on noise pollution.  Nowhere in the Constitution is Congress given the delegated power to regulate noise pollution, unless of course you use a silly interpretation of the General Welfare Clause or the Commerce Clause.  Pretty much anything the U.S. government does that is not justified by a delegated power is unconstitutional.

Notice that the Tenth Amendment says that all powers not delegated to the federal government are reserved for the states.  Pretty much pokes a hole in the ludicrous argument that the federal government is free to do what it wants as long as it doesn't violate any part of the Constitution.

Was noise pollution an issue when the Constitution was written?

[Free Palestine]

Give an example to me of something that is unspecified or not a violation of the Constitution that is unconstitutional then.

One example I can think of is the Noise Control Act of 1972, which puts federal regulations on noise pollution.  Nowhere in the Constitution is Congress given the delegated power to regulate noise pollution, unless of course you use a silly interpretation of the General Welfare Clause or the Commerce Clause.  Pretty much anything the U.S. government does that is not justified by a delegated power is unconstitutional.

Notice that the Tenth Amendment says that all powers not delegated to the federal government are reserved for the states.  Pretty much pokes a hole in the ludicrous argument that the federal government is free to do what it wants as long as it doesn't violate any part of the Constitution.

Was noise pollution an issue when the Constitution was written?

No, but that argument doesn't quite work.  Even if noise pollution was a problem in 1787, I find it unlikely that they would have given the federal government the broad power to regulate something like that.

[John Dibble]

Maybe, maybe not, but I think the judiciary is the best choice of bodies to be the ones who have the final say in interpretation. If Congress had the say, then they could make any law they wanted and say it's constitutional. If the Executive branch had the say, then they could enforce laws however they damn well pleased and say it's constitutional.

The Judiciary's traditional role is interpretation anyways - cases are presented, the law is interpreted to determine if it's applicable to the case in question, and a sentence is handed down based on the case factors.

[The Mikado]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

[Torie]

It was a bit of a blank who was the ultimate enforcer of the text of the Constitution. Marshall in Marbury v Madison resolved that, and was clever enough to package that "resolution" in a decision that Jefferson technically "won," so there was nothing Jefferson could really do about it, except feel frustrated that his pocket had been picked.

But that aside, it does not make much sense for the body that passes an Unconstitutional law, to then sit in judgment of itself as to whether it is Constitutional or not, now does it?  

So Marbury v. Madison almost literally had to happen, because otherwise the gears of the governance mechanism fashioned by the Founders, would just not mesh at all. As it is, sometimes they mesh with less than Swiss watch perfection, leading from time to time to certain difficulties, including well, a Civil War among other things.

[Obnoxiously Slutty Girly Girl]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

[Torie]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Er, Jefferson had nothing to do with writing the Constitution actually (he was hiding out in Europe as an ambassador in Paris at the time the document was being crafted). And Madison tended to flip flop as conditions changed. He was generally against states rights in the Federalist Papers (in part for quite clever and original and insightful reasons), and then for them again, when it appeared that the issue of slavery was going to rear its ugly head in Congress in 1791. So Madison did a 180, became an anti-federalist, and arranged matters so legislation about slavery became out of order to even bring up in Congress, much less debate or vote on. So I don't trust Madison either - at all.

[Obnoxiously Slutty Girly Girl]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Er, Jefferson had nothing to do with writing the Constitution actually (he was hiding out in Europe as an ambassador in Paris at the time the document was being crafted). And Madison tended to flip flop as conditions changed. He was generally against states rights in the Federalist Papers (in part for quite clever and original and insightful reasons), and for them again, when it appeared that the issue of slavery was going to rear its ugly head in Congress in 1791. So Madison did a 180, became an anti-federalist, and arranged matters so legislation about slavery became out of order to even bring up in Congress, much less debate or vote on. So I don't trust Madison either - at all.

I didn't say they wrote the Constitution.

[True Federalist (진정한 연방 주의자)]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Of all the people who weren't at the Constitutional Convention, John Adams was certainly the most qualified to opine on Constitutional issues. Indeed, he is certainly better qualified than most of the people who were at the Convention.  He was the primary author of the 1780 Constitution of Massachusetts (The oldest formal Constitution of any State that is still in use, albeit with 120 Amendments.)  That constitution took a then novel form of arranging the material of a constitution, that was followed by the U.S. Constitution seven years later.

It appears that you judge whether someone is qualified only by whether they agree with you.  (Some of the time that is.  Neither Jefferson nor Madison were strict constructionists once they were the ones in charge instead of being the ones complaining about the ones in charge.)

[WillK]

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

What an ignorant comment. 

[WillK]

Of all the people who weren't at the Constitutional Convention, John Adams was certainly the most qualified to opine on Constitutional issues. Indeed, he is certainly better qualified than most of the people who were at the Convention.  He was the primary author of the 1780 Constitution of Massachusetts ...

He was also the author of this:
http://www.constitution.org/jadams/ja1_00.htm

[Obnoxiously Slutty Girly Girl]

Of all the people who weren't at the Constitutional Convention, John Adams was certainly the most qualified to opine on Constitutional issues. Indeed, he is certainly better qualified than most of the people who were at the Convention.  He was the primary author of the 1780 Constitution of Massachusetts ...

He was also the author of this:
http://www.constitution.org/jadams/ja1_00.htm

Yeah, nothing anyone has said in response has debunked what I claimed. The guy who thought the Alien and Sedition Acts were constitutional clearly wasn't representative of the original intent of the framers.

[WillK]

Yeah, nothing anyone has said in response has debunked what I claimed.

I think we clearly debunked it.

You must be logged in to read this quote.

Sure he was: framers like Hamilton thought it was constitutional also. 

[Kaine for Senate '18]

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Well, that is certainly an inaccurate historical statement.

[Mechaman]

Alright, but you do admit that your view is in clear contrast with the intentions of the Founding Fathers who actually crafted the Constitution?

Except that his view is the same as that of Justice John Marshall, who was appointed by President Adams, who was certainly a Founding Father by any definition?

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Of all the people who weren't at the Constitutional Convention, John Adams was certainly the most qualified to opine on Constitutional issues. Indeed, he is certainly better qualified than most of the people who were at the Convention.  He was the primary author of the 1780 Constitution of Massachusetts (The oldest formal Constitution of any State that is still in use, albeit with 120 Amendments.)  That constitution took a then novel form of arranging the material of a constitution, that was followed by the U.S. Constitution seven years later.

It appears that you judge whether someone is qualified only by whether they agree with you.  (Some of the time that is.  Neither Jefferson nor Madison were strict constructionists once they were the ones in charge instead of being the ones complaining about the ones in charge.)

Well, Libertas in the past has said he would vote for John Adams in 1796 over Thomas Jefferson........so I'm not entirely sure if it's because he likes Jefferson more than Adams.  Although he did kind of make a mistake in his evaluation of history.

[Obnoxiously Slutty Girly Girl]

Adams did not contribute much to the intellectual underpinnings of the U.S. Constitution. Jefferson and Madison did. They were far more qualified than Adams to comment on the constitutionality of judicial review.

Well, that is certainly an inaccurate historical statement.

Well no, it most certainly is not.