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Arlos wrote:Judicial review of the constitutionality of laws is a tradition of over 200 years now, if I have my dates right. It's not going to change. Get over it. Look at the quotes I posted about the "Tyranny of the Majority" that the Founding Fathers were worried about. Judicial review provides some protection against this. It's a good thing.

Longevity is not, in and of itself, a rationale for existence. Regardless of how long ago the judicial branch usurped legislative authority, it's still not Constitutional. Instead of the tyranny of the majority, you have the tyranny of the extreme minority, even of the one in some cases.

Gidan wrote:Ahhh so we let the people creating the laws also determine if the laws are constitutional. So there is no form of checks and balances in the gov't. Legislators have supreme power to make laws as they see fit and determin for themselves if those laws follow the constitution. Thats kind of like letting a police officer be the head of an investigation where he is the prime suspect.

You really need to review the legislative process if you honestly believe this. I'm going to give you the benefit of the doubt and assume you're throwing this out there to get a rise out of others. The assumption of legislative powers by the judicial system weakens the system of checks and balances.

Lueyen wrote:You are absolutely correct concerning the intent of the founding fathers Arlos, not only do the quotes support the idea, but the very design of our government protects against the majority trampling the civil rights of people.

Judicial review on the federal level is not just tradition, it is the function of the judicial branch of government set forth in the constitution.

This is absolutely incorrect. The Constitution never even hints at allowing judicial review. This a prerogative the Supreme Court granted itself in clear abeyance of any Constitutional authority.

Untrue, Xao. If you want the law passed that badly, get it passed as a constitutional amendment. Then it is completely immune to judicial review. Oh, I'm sorry, you have to go through a lot more rigorous process to get such an amendment passed over and above a normal law? Tough shit. Jim Crowe laws, for example, were unconstitutional, and were struck down. If you had your way, that never would have happened, because those laws WERE the will of the majority at the time, and thus, in your skewed worldview, absolutely correct and proper.

Sorry, bullshit. The founding fathers WERE worried about the Tyranny of the majority, I've shown that convincingly. Judicial Review is the ONLY means we have in this country of preventing it. Judicial Review is a GOOD thing. Again, if you feel THAT strongly about a law that was ruled as running counter to the Constitution, get it passed as a constitutional amendment. That's always an option, and no court could stop you.

-Arlos

Arlos wrote:Untrue, Xao. If you want the law passed that badly, get it passed as a constitutional amendment. Then it is completely immune to judicial review. Oh, I'm sorry, you have to go through a lot more rigorous process to get such an amendment passed over and above a normal law? Tough shit. Jim Crowe laws, for example, were unconstitutional, and were struck down. If you had your way, that never would have happened, because those laws WERE the will of the majority at the time, and thus, in your skewed worldview, absolutely correct and proper.

You excell at creating worldviews for people that disagree with you. Unfortunately, what you've constructed doesn't have the vaguest correlation to mine. It's easy to make claims that are impossible to substantiate, such as speculating about laws that would "never" have been overturned. Fortunately it's relatively easy to disprove this particular claim, with two words: Executive action.

Sorry, bullshit. The founding fathers WERE worried about the Tyranny of the majority, I've shown that convincingly.

That's nice. Sadly it has no bearing on this particular conversation. Regardless of how the founding fathers percieved your hobby horse of the week, they didn't plan for, implement, or condone judicial review. Sorry.

Judicial Review is the ONLY means we have in this country of preventing it. Judicial Review is a GOOD thing. Again, if you feel THAT strongly about a law that was ruled as running counter to the Constitution, get it passed as a constitutional amendment. That's always an option, and no court could stop you.

Bullshit. Judicial review is hardly the panacea for every social injustice, and runs directly counter to the system of checks and balances laid out in the Constitution. Nor is it the only way to effectively alter legislation. The Constitutional amendment argument is ludicrous, and I have to believe that you understand that. The funny thing is, if an executive or legislative official attempted a power grab of this magnitude, they'd be hung from the nearest tree. Because most people have only the vaguest grasp of conlaw, they're willing to accept it based simply on its historical precedence without any real understanding of it's absolute vacuum of legal support.

xaoshaen wrote:

Lueyen wrote:You are absolutely correct concerning the intent of the founding fathers Arlos, not only do the quotes support the idea, but the very design of our government protects against the majority trampling the civil rights of people.

Judicial review on the federal level is not just tradition, it is the function of the judicial branch of government set forth in the constitution.

This is absolutely incorrect. The Constitution never even hints at allowing judicial review. This a prerogative the Supreme Court granted itself in clear abeyance of any Constitutional authority.

While the constitution does not have the words "judicial review", it does give the judiciary branch the power to hear cases that fall under the jurisdiction of the constitution (a rather broad range). Taking into account that the constitution is the surpreme law of the land, and in a case of conflict with other laws it trumps all others then the very first thing that must be taken into consideration by the highest court in the land is if indeed the law is in accordanace with the constitution. If it is not then it is simply invalid and therefore not applicable. If the court is to remain impartial and consistent, then any decision made is setting a presedence. This means that the law or any similar laws that is deemed unconstitutional will be invalid in any other case. So by logical conclusion what we think of judicial review is indeed granted as a power to the judiciary branch even if not stated specifically.

So xaoshaen, you beleive the founders of the constitution wanted judges to rule based on legislated law and not the constitution. Because, in any case where a judge views a law that is in conflict with the constitution, you are arguing he should rule based on the legislated law and not the constitution becasue its obviouly not his place to consider the constitution, thats the job of legislators, Why do we need judges again? Seems they really have no place, should just replace them with legislators and be done with it..

Our entire democratic system needs an enima, could start slow by just getting rid of the electorial college. IMO as more countries become democratic the less democratic our system/constitution will seem.

Maybe that's because we aren't a democracy but a constitutional republic. We govern by the Rule of Law and not on what 5 wolves and a sheep want for dinner (ie democracy).

xaoshaen wrote:

Lueyen wrote:You are absolutely correct concerning the intent of the founding fathers Arlos, not only do the quotes support the idea, but the very design of our government protects against the majority trampling the civil rights of people.

Judicial review on the federal level is not just tradition, it is the function of the judicial branch of government set forth in the constitution.

This is absolutely incorrect. The Constitution never even hints at allowing judicial review. This a prerogative the Supreme Court granted itself in clear abeyance of any Constitutional authority.

The Supremacy Clause in Article VI mentions that the Constitution and the Laws made in pursuance thereof are the supreme law of the land. A law that contradicts or violates the Constitution is therefore null and void as it cannot be considered valid. The question is: who decides? To me, and to most people, it passes reason that any court would simply convict someone of a crime based on a law that was invalid -- I would raise as a defense that the law I was charged with violated my constitutional rights, and how is a court to ignore that defense? Judicial review falls right out of Article III and VI.

Obviously Congress cannot pass a valid law that violates the Constitution.

--R.

Gidan wrote:So xaoshaen, you beleive the founders of the constitution wanted judges to rule based on legislated law and not the constitution.

Wrong

Because, in any case where a judge views a law that is in conflict with the constitution, you are arguing he should rule based on the legislated law and not the constitution becasue its obviouly not his place to consider the constitution,

Wrong.

thats the job of legislators, Why do we need judges again? Seems they really have no place, should just replace them with legislators and be done with it..

Aaaaand, that's 0 for 3. Grats on a Giambiesque performance.

Lueyen wrote:While the constitution does not have the words "judicial review", it does give the judiciary branch the power to hear cases that fall under the jurisdiction of the constitution (a rather broad range). Taking into account that the constitution is the surpreme law of the land, and in a case of conflict with other laws it trumps all others then the very first thing that must be taken into consideration by the highest court in the land is if indeed the law is in accordanace with the constitution. If it is not then it is simply invalid and therefore not applicable. If the court is to remain impartial and consistent, then any decision made is setting a presedence. This means that the law or any similar laws that is deemed unconstitutional will be invalid in any other case. So by logical conclusion what we think of judicial review is indeed granted as a power to the judiciary branch even if not stated specifically.

This is what's known as spurious logic. Simply because the the courts may determine that one law is overridden by another law, that does not give them fiat to strike one law from the books.

Martrae wrote:Maybe that's because we aren't a democracy but a constitutional republic. We govern by the Rule of Law and not on what 5 wolves and a sheep want for dinner (ie democracy).

Mart

xaoshaen wrote:

Gidan wrote:So xaoshaen, you beleive the founders of the constitution wanted judges to rule based on legislated law and not the constitution.

Wrong

Because, in any case where a judge views a law that is in conflict with the constitution, you are arguing he should rule based on the legislated law and not the constitution becasue its obviouly not his place to consider the constitution,

Wrong.

thats the job of legislators, Why do we need judges again? Seems they really have no place, should just replace them with legislators and be done with it..

Aaaaand, that's 0 for 3. Grats on a Giambiesque performance.

Ok so let me get this straight. You beleive judges should rule based on the laws, if the constitution and a law are in conflic they should just ignore the law and go by the constitution.

Now they just ignore that law as if it doesn't exist. So what exactly happens form there? We leave the law on the books so that we can waste time and money on more court cases where somone violates a law that is not constituionally valid.

You yourself have said, if a law is in conflict with the constitution it is invalid. Yet you also beleive we shoudl leave invalid laws where they are unless the legislator decide to repeal it. Now what if the legislators decide not to repeal this invalid law? It should just stay there until they decide to repeal it?

In our whole system of checks and balances, who is it that watches over the legilators again?

alezrik wrote:Our entire democratic system needs an enima, could start slow by just getting rid of the electorial college. IMO as more countries become democratic the less democratic our system/constitution will seem.

As for getting rid of the electorial college. I completely agree. It still makes very little sence to me why we even have it. Any system that puts more weight in one persons vote over another persons vote based on what state they live in is flawed. The popular vote should be the only numbers that matter.

My mistake, our system is more like what wolf 3 sheep a hen and a goose choose to decide who should make decisions about what to have for dinner. Much fairer.

Gidan wrote:Ok so let me get this straight. You beleive judges should rule based on the laws, if the constitution and a law are in conflic they should just ignore the law and go by the constitution.

Now they just ignore that law as if it doesn't exist. So what exactly happens form there? We leave the law on the books so that we can waste time and money on more court cases where somone violates a law that is not constituionally valid.

Well, hell, if we get attacked by another nation, let's just let the Supreme Court declare war. We wouldn't want to waste time in a national emergency. Expedience is not an acceptable justification for the judicial branch to usurp the powers of another branch.

You yourself have said, if a law is in conflict with the constitution it is invalid. Yet you also beleive we shoudl leave invalid laws where they are unless the legislator decide to repeal it. Now what if the legislators decide not to repeal this invalid law? It should just stay there until they decide to repeal it?

It's more a case of precedence over validity. Conflicting laws are the norm, given our tiered national sturcture. The judge has to determine which laws apply and which take precedence, then rule on the merits of the case. They shouldn't have the power to arbitrarily legislate.

In our whole system of checks and balances, who is it that watches over the legilators again?

It's called the executive branch. Under a system of judicial review, who is it that watches over the judicial branch again?

So the checks and balance system is a balance between the legilative and executive branches? Each watches over the other, the judicial branch is a powerless observer.

Gidan wrote:So the checks and balance system is a balance between the legilative and executive branches? Each watches over the other, the judicial branch is a powerless observer.

No, and don't be ridiculous. Without judicial review, the courts are hardly "powerless observer[s]". Answer the question, who provides checks on the judicial review process?

xaoshaen wrote:

You yourself have said, if a law is in conflict with the constitution it is invalid. Yet you also beleive we shoudl leave invalid laws where they are unless the legislator decide to repeal it. Now what if the legislators decide not to repeal this invalid law? It should just stay there until they decide to repeal it?

It's more a case of precedence over validity. Conflicting laws are the norm, given our tiered national sturcture. The judge has to determine which laws apply and which take precedence, then rule on the merits of the case. They shouldn't have the power to arbitrarily legislate.

How can a law that is in conflict to the constitution, for example a law that takes away a right provided by the constitution, fall into precedence over validity. It has nothing to do with how its applied, if it clearly violates the constitution it needs to be removed. I just dont see the people who put the law in place saying "oops we screwed up, lets just take that out". Maybe I just have a low view of politicians, but I dont see them admitting to screwing up often.

This is just my opinion, however I see Judicial review as one of the most important jobs of our judicial system. The citizens of this country are protected by the constitution, and they should be protected against legislation that takes away thakes away the rights the constitution gives them. It shouldn't be the people creating the laws that are doing that, nor should it be the people approving those laws. I see our judicial branch as the group who watches over the legislative and executive branches.

I beleive it was always the intent of the writers of the constitution to allow this. It was regularly accepted by the people of this time that judges had that power. It is still my beleif that it was not put into the constitution because it was already an understood part of the job of a judge. From the resarch on this I have done, it appears it was brought up while writing the constitution, only 11 people commented, 9 of the 11 were for it.

Contradictory laws are not allowed to exist. Something has to be done about them. It's absolutely stupid to think that contradictory laws is something fine and dandy.

I'm not even going to bother getting into this. You're wrong xao.

xaoshaen wrote:

Gidan wrote:So the checks and balance system is a balance between the legilative and executive branches? Each watches over the other, the judicial branch is a powerless observer.

No, and don't be ridiculous. Without judicial review, the courts are hardly "powerless observer[s]". Answer the question, who provides checks on the judicial review process?

The legislative branch provide checks on the judial system. They can pass constitutional amedments which the Courts MUST adhear to.

They also have the power to impeach a judge. If a judge is abusing the power of judicial review, they can be removed.

Yamori wrote:Contradictory laws are not allowed to exist. Something has to be done about them. It's absolutely stupid to think that contradictory laws is something fine and dandy.

I'm not even going to bother getting into this. You're wrong xao.

Riiiight, because this country would never have contradictory laws on the books. They're the norm, not the exception.

Gidan wrote:The legislative branch provide checks on the judial system. They can pass constitutional amedments which the Courts MUST adhear to.

They also have the power to impeach a judge. If a judge is abusing the power of judicial review, they can be removed.

So, the only way a judge's decision can be overturned is by Constitutional amendment, and you're ok with this? Yet you have a problem with relying on legislatures to repeal laws...

Gidan wrote:

xaoshaen wrote:

Gidan wrote:So the checks and balance system is a balance between the legilative and executive branches? Each watches over the other, the judicial branch is a powerless observer.

No, and don't be ridiculous. Without judicial review, the courts are hardly "powerless observer[s]". Answer the question, who provides checks on the judicial review process?

The legislative branch provide checks on the judial system. They can pass constitutional amedments which the Courts MUST adhear to.

Congress cannot pass Constitutional Amendments, they can only propose them. And an Amendment doesn't even require congressional approval.