One of the first cases that exhibited Judicial review was Marbury vs. Madison . Marshall's court declared unconstitutional a law passed by the first congress. The majority of the first congress was made up of delagates to the constitutional convention. It is HIGHLY unlikely that the same people who created the constitution would then pass an unconstitutional law. The court misused its power at the first chance.
The problem with judicial review lies not in the idea, which is sound, but in how it is carried into practice.
Edit: I put the correct cas in.
[ August 17, 2003, 09:51 AM: Message edited by: Ryan Hart ]
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Ryan, many of the people who penned the Constitution owned slaves. Based on that logic, should the SC allow states to decide whether slavery is legal because it was never the intent of the constitution to forbid it?
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One of the things Ive tried to teach myself is this.
Everytime you think that the stop lights should be sequenced differently so that you could be driving instead of wait for 30 more seconds, there was somebody who knows much much more about stop lights and traffic then you would ever want to, and this person's way, I'm confident, is optimal taking all factors into account.
When you wonder why they dont exactly know yet why the power went down over such a wide area, and that they should have it figured out faster. I assure you, people much smarter then you when it comes to power grids are working on this problem around the clock.
Everytime you say "ya know, they ought to do it this way...(etc)". Odds are someone has given it more thought then you and has decided the current way is best.
RH:
How can you expect your uneducated(comparitivly) argument to be correct when so very very many people whos lives are dealing with the law think other wise?
(sorry if this takes on the tone of an argument, I just seem to do that when I intend to keep it a discussion)
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quote:Granted. In that case judicial review would be waranted. Perhaps what is needed then is a limitation to the level at which that power must be carried out.
RH, in response to Dan Raven's hypothetical law outlawing democrats from political office. I'm glad to see you've softened your position somewhat regarding judicial review, RH. I don't think any effective means to limit judicial review could happen without a constitutional amendment. And that seems very improbable for such a complex and abstract legal issue. Only something that really gets people motivated stands a chance of passing the difficult amendment procedures.
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Ryan, even I, who agree with you that the Supreme Court has gotten somewhat out of hand, can admit that judicial review is important to the smooth functioning of the government.
And the President and Congress are certainly capable of overriding the Court by force, as it were, if they think they can do it without consequence. Familiar with this: "Mr. Marshall has made his decision. Now let him enforce it"?
(I suppose my problem is that appointment and life terms don't seem to have actually prevented justices from making politically-based rulings. They may not have to worry about elections, but they still have their political stances just like the rest of us. So far as I can tell, whenever the opportunity arises they rule that the Constitution says what they want it to say. Fortunately most of the time the liberals and conservatives balance each other out, but not always. IMHO, anyway.)
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quote: One of the first cases that exhibited Judicial review was Cooper vs. Aaron. Marshall's court declared unconstitutional a law passed by the first congress.
Wasn't Cooper v. Aaron in 1958?
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Macabeus is completely right. Some people say that judicial review is essential to democracy. However England's parliment can "change judicial decisions by statute." The French and Swiss go so far as to not allow the court ANY jurisdiction over the constitutionaltiy of any federal law. These governments are stable democracies.
Justice Holmes once said "I do not think the United States would come toa an end if we lost ouer power to declare an Act of Congess Void."
We must also remember that the Supreme Court is EQUAL to the Legislature. The ability to nullify an act of Congress would raise it above the congress. If a law is so blatantly against congress (like the inability of a democrat to hold office) then it can be struck down.
Judicial review is more important when a law is passed in the past, the modernly enlightened court can remove it. However modern and active laws (such as the Texas sodomy law) that are supported by many people, and have been upheld in a previous Supreme Court decision should not be removed. Has the Constitution changed since a sodomy law was upheld? No pertinent Constitutional amendment has been passed. Therefore the Supreme Court is NOT interpreting the Constitution, but legislating morality.
Edit: Yes your right. Cooper vs. Aaron was in 1958. My casebook has it listed right after Marbury vs. Madison.
EditII: Macabeus that is one of my favorite quotes. I think it is highly amusing.
[ August 17, 2003, 09:50 AM: Message edited by: Ryan Hart ]
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No, the ability to nullify an act of congress does not put it above Congress. It puts the Constitution above Congress, which is entirely correct.
If the SC began making decisions that were not justified under the law of the land, they would be ignored, as they have been even on issues which they were correct on.
The Supreme Court has no power of enforcement. The only way any act of Congress is nullified is by Congress allowing it to happen. Congress and the President both have powers of enforcement that are not open to the SC: Congress controls the money, and the President can order the guns around. The Supreme Court has no recourse other than the force of persuasion.
If Congress wishes an act to continue (despite the SC saying otherwise), it will. It's already happened at least once (I'll look for my reference, but I'm packing for a small move to another apartment in the same building).
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RH, I among others refuted your last paragraph in this "States rights are cool, but what about justice?" thread, in response to OSC's similar arguements in a column of his.[Edit: and others take yours and OSC's side in that thread, of course.]
I certainly would not say that sodomy laws are "modern" or "active." I also would say that most people think it's none of the government's damn business what 2 consenting adults do in the privacy of their own home.
That was very interesting about the French and Swiss not allowing their courts to overrule their legislature, I didn't know that.
posted
Well, you don't have to look too hard [fugu] . . . I already mentioned the continued existence of de jure segregation, including in the area of education, for ten years after Brown v. Board of Education.
quote:We must also remember that the Supreme Court is EQUAL to the Legislature. The ability to nullify an act of Congress would raise it above the congress.
I don't agree. This is the SC's balance. Without this power, in what way is it equal to the other two branches? The way the branches are equal is in the fact that each has some power over the other two. Yes, the SC can nullify a law, but the SC justices are appointed by the president with congressional approval. And, once again, the SC has no enforcement power of its own.
I don't agree with OSC's assertion that this case, Roe v. Wade, and Brown (OK, I guess I am broadening his assertion, but I have seen others in this thread argue the point) are not constitutional issues. I do agree, though, with those who feel that there has been at times some legislating from the bench. I think Maccabeus put it very well. Although they do not have to fear not being reelected, the justices still have their political axes to grind. For instance, I personally find it more than a little questionable that the right to privacy of a mother trumps the right of a fetus to life.
posted
If all the Supreme Court did was interpret the Constitution, then yes, judicial review would probably be warrented in all situations the justice used it. However Supreme Court justice (just like almost everyone) have political opinions. So they wait for the chance to put their political opinions into balance. Remember they didn't get there just by being a really good judge. They did have to politik a little bit to get where they did.
Roe vs. Wade competes with Dred Scott as the worst decision. It was argued that a fetus was not a life. The biology used to argue that the fetus is not a viable life until the third trimester has been shattered. It was obvious that the court believed that abortion should be legal, so it used it's power to make it so.
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Icarus: the court basically said that a fetus' right to life was so unclear as to be not a significant barrier to ruling based on the clear violation of doctor patient privilege that the abortion law in question was.
The argument was not that privacy trumped the right to life, but that privacy was the default, and could only be overridden were there a right to life for the fetus, which was unclear.
Ryan: based on my readings on the subject, the majority of the SC justices were personally against abortion. However, I think they were swayed by the high rate of and extreme danger involved in illegal abortions and personal attempts at abortion. Basically, many people who were definitely guaranteed a right to life were dying every year because they were unable to obtain a safe abortion.
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I believe that the idea was not really whether it was life or not. Any bacterium is life. The real question is whether or not it could be considered a Human life.
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The fact of homemade and illegal abortions was greatly exagerated. Correct me if I'm wrong, but abortion was legal in some states.
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Abortion was legal in some states. The people getting illegal abortions were the ones who couldn't afford to travel to another state.
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If it was available, but people could not travel to the states, then it was still the mother's fault. The law was still constitutional, however the Court believed that abortion should be made legal. That is why they ruled as they did, not because it was unconstitutional.
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"If it was available, but people could not travel to the states, then it was still the mother's fault. The law was still constitutional, however the Court believed that abortion should be made legal. That is why they ruled as they did, not because it was unconstitutional. "
How astounding. You can read minds, now.
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How is it the mother's fault if she's poor and can't get time off to travel halfway across the country to have an abortion?
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It's not her fault that she's poor and can't travel. It is her fault if she chooses to illegally abort. If she doesn't want the baby there is adoption, or legal abandonment. There is ALWAYS an alternative.
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While some pregnant women can continue working, most are unable to for at least some period. This is not an option for many.
That's ignoring the social stigma associated with many pregnancies (particulary at the time of Roe), where one could be forced out of school for being pregnant, and was often shunned at work.
And even ignoring both of those aspects, the issue is not that there are no alternatives, but whether or not there is a legal justification for banning a medically safe procedure that does not clearly legally involve anyone other than the mother.
It's analogous to a law banning masturbation (in private, that is). By virtue of it's being private, it's protected, even though it is not necessary for a guy to do. It would be illegal to make a law banning private masturbation.
Now, it is no longer analogous if the fetus is considered a protected human life. The court's position was that the situation was sufficiently unclear that they could not justifiably override the right to privacy, which definitely exists.
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As an australian who believes we also have a pillar of democracy... And a law student:
One of the fundaments of separation of powers (which is entrenched in the US Constitution) is the notion checks and balances. Yes the legislature has the (supreme) power to create laws, but the judiciary must also have the power to review those laws and, if they are unconstitutional, strike them down.
However there is a difference between judicial activism (and some would say judicial law making) and judicial review. While I think the former is desirable (as I tend to agree with those decisions of both our own High Court and the US Supreme Court and think they are usually the moral and ethically right decisions) it isn't part of separation of powers - in fact, it's argued it undermines the doctrine.
posted
But how can you argue that a women's right to privacy overrides a baby's right to live? Even the science used to argue the case has been proven false. A baby can survive out of the womb before the third trimester.
And I think it's funn that if you give drugs to a fetus, it's giving a controlled substance to a minor. And that there is a law called intent to harm an unborn child, whereas abortion is completly legal.
Edit: Fugu- Is there anything we agree on?
[ August 17, 2003, 08:49 PM: Message edited by: Ryan Hart ]
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Ryan you previously mentioned how the Swiss and French courts cannot overrule parliament on constitutional matters.
I don't know about France, but Switzerland allows for public referenda on *every* law passed by federal parliament: as such, the argument is, any reveiw by the courts is unnecssary as the population may challenge any individual law, and if they vote against it, overturn it.
Which certainly isn't the case in any other democracy.
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Kinda gotta agree on this pillar of democracy thing. In Australia, voting is compulsory so voter turnout is something in the vicinity of 85% of eligible persons. Now, does this make Australia more democratic since its government is decided by a greater percentage of its population or less democratic because people can't choose whether they vote or not. I'm inclined to go with the former...
Oh, and Ryan...
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Imogen, where do you study in Australia?
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Fugu, though i may have misunderstood your above post concerning at home abortions being analogous to the banning of private masturbating. Though it may be done in private, does not make it right. The human being was not created with an instinct to murder, (or however abortion is described). The exact instant that a fetus becomes a human being can not be determined due to the distorted views of people who have put them selves in a bind by getting pregnant then not wanting the child due to reason unknown, mostly selfish. What is next, sell your 3 year old child to a sweat shop because he is not old enough to make his own choices? I think not, and please tell me if you kill your penis while masturbating.
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If you want to use the argument that the SC is superior to congress because they can override congress, then you should apply the same logic the otherway around, cause congress can override the SC as well.
i mean, that is what you're pushing for here isn't it? For congress to change the powers of the SC. That would imply that congress has power over the SC, thus, putting the SC under congress as well.
Odd, that sounds like a system of checks and balances, doesn't it?
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Well, you malign homosexuality constantly but assert "hey, I don't hate gay people". You refuse to even acknowledge when someone proves you wrong on a point. Your posts are often arrogant, condescending and ignorant. So when I see you making another thread that seems to be a complaint about judicial review inspired by your disgust with a decision relating to sodomy laws...
Since I'm not American I also don't take well to comments in the vein of "America is the best country in the world". Or THE pillar of democracy or whatever.
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quote: But how can you argue that a women's right to privacy overrides a baby's right to live?....And I think it's funny that if you give drugs to a fetus, it's giving a controlled substance to a minor. And that there is a law called intent to harm an unborn child, whereas abortion is completly legal.
Ryan, I'm pro-life, myself -- but you're way off-base, here.
The court's logic was as follows:
1) There is no way to tell if a fetus in early stages of development is a baby or not. 2) Consequently, there is no way to tell if the fetus is a human being and thus deserving of legal protection. 3) However, there is an implicit right to privacy inherent in the Constitution. 4) Without knowing whether the fetus deserves rights, we are forced to that the mother's right to privacy permits abortion.
This is actually pretty logical. Now, there are two OBVIOUS points of contention. #1, you can say that there IS some way to tell if a fetus is human or not, or that it's better to err on the side of caution and ASSUME it's a human being with rights. (This is my approach.) #2, you can say there's no such thing as an inherent right to privacy, and that the government consquently has the right to restrict any and all private behavior. (Many people also make this claim.)
As to the two laws you reference: it's worth noting that both these laws were passed AFTER Roe v. Wade, and both were heavily opposed by pro-abortion lobbyists -- precisely because they knew these laws would be used as legal precedent by pro-life activists in arguments like this one, and in future cases. If similar cases were to come before the court, the Supreme Court might find itself again forced to establish some firm ruling on the legal rights of a fetus -- something that, even in Roe v. Wade, it has been desperately trying to avoid (mainly because there's a whole BARREL of worms that can be opened on this issue).
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quote: This is why we have, "In God We Trust" on our money. Its probably unconstitutional, but nobodies bothered to take it to court.
As a side issue, I believe the Supreme Court HAS ruled on this before -- although I could be wrong. IIRC, they argued, quite ludicrously, that "In God We Trust" was not REALLY religious, but instead served a form of "secular purpose," being of patriotic and symbolic character. The logic, in fact, was that no one in politics REALLY meant that they trusted in God when they put it on their money, and so it was a purely symbolic expression of a trust in some form of something.
It was an agonized, foolish, and even -- depending on how you look at it -- cynically blasphemous decision, motivated almost exclusively by fear of political fallout.
posted
Hi Ethics - Perth originally but I'm spending a year in sunny Brisbane. Gotta love a winter that doesn't get below 18C! Posts: 4393 | Registered: Aug 2003
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That'd be nice. The bane of my existence is the flu sweeping Sydney at the moment. Three weeks of it (including a bout of bronchitis). Posts: 2945 | Registered: Apr 2000
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Nosx- you misunderstand my and the courts reasoning. From my perspective, and from the courts, it is not clear if the fetus has a right to life. What is clear is that the woman has a right to privacy, and the legal principle in the US (as recently affirmed several times by the SC) is that unless there is an overriding principle, privacy shall be legally inviolate. As the fetus's status is unclear, there is no overriding principle.
My personal best guess is that the fetus should have a right to life, at least after the first trimester. That the fetus should have a right to life upon conception seems to me ridiculous, however, and there is no scientific evidence to suggest otherwise. However, I am not comfortable enforcing a feeling I have on others who may hold different opinions for well thought out reasons, particularly with regard to so life changing a situation as having a baby.
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Or better yet, bump one of the fifty million already exsisting threads on this subject, and continue it. Posts: 4655 | Registered: Jan 2002
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Ryan Hart said earlier: "Roe vs. Wade competes with Dred Scott as the worst decision. It was argued that a fetus was not a life. The biology used to argue that the fetus is not a viable life until the third trimester has been shattered. It was obvious that the court believed that abortion should be legal, so it used it's power to make it so."
I disagree with Roe v. Wade, but I am not interested in joining in any abortion arguments at this time. Instead, I want to address your criticisms above.
The S.Ct.'s reasoning re: the three trimesters has already been refuted by later S.Ct. opinions, and is no longer part of our case law. Those lines were rightly recognized as being too arbitrary, and not flexible enough to keep pace with scientific/medical advances.
As for the Justices ruling the way they did just because they personally believed that abortion should be legal, I heartily disagree. I don't think you will find any evidence that this is the case.
The biggest legal (rather than moral) problem I have with Roe v Wade is that it unwisely elevated the term "Right to Privacy" into our national legal lexicon. Other cases have tried to point out that there is actually no "Right to Privacy" in the Constitution, but the term has stuck. The case should instead have focused on the more correct "Liberty interest." That is, the Due Process clause(s) broadly refer to our rights to life, liberty and property. "Liberty" is a broad enough concept to encompass many rights that we might think of as having to do with Privacy, but Privacy itself isn't necessarily therefore a Constitutional right.
posted
Ryan, perhaps you should reconsider the "deliberately forceful" thing. It's not working for you, bro.
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Oh, lay off of RH already. Too many people have been giving him a hard time. I don't agree with most of his opinions. Yet I thought he defended an untenable position well--ie no SC judicial review after 200 years of precedent. He even softened his position some when faced with extreme hypothetical law situations. Personally, I think crying "judicial activism!" is ususally a facade to facilitate criticism of specific SC opinions , but he seems to really believe the SC has too much power. Along with OSC. Ryan, express your views as forcefully as you want. Just try to avoid ad hominem attacks (which you have as far as I can remember), respect whoever you're debating and back opinion with facts.
quote: You refuse to even acknowledge when someone proves you wrong on a point. Your posts are often arrogant, condescending and ignorant.
Ethics Gradient, RH did acknowledge he could be wrong about completely limiting judicial review. And though you are far from from ignorant, EG, you've come across as arrogant and extremely condescending at times. Pull the mote out of your eye, let he who is without sin, etc. Oh, wait, I just remembered: EG told me weeks ago he ignores everything I post for some reason. Well, at least he's open-minded.
I used to be very arrogant, no, incredibly arrogant and pompous when I was younger. I hope I don't appear that way now.
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I'd like to compliment RH on adapting to hatrack has he has. His earliest posting set me a bit on edge, but he has adjusted his posting style well to the situation, and I think he makes a good jatraquero.
Of course, if I think his reasoning is in error I'll jump on his back in an instant, but I do that with everyone .
He does not deserve to be jumped on for expressing his positions.
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Yeah, sorry. I just happen to have a lot of homosexual people in my life that I care very, very deeply about. So someone who appears to have a serious agenda against them is going to cop flack from me.
If someone is allowed to say that my friends are going to burn in hell for being gay, I feel entitled to tell them to get screwed.
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Morbo, yep. You're right. I can definitely be arrogant and condescending. Sorry about that.
And yeah, I did ignore your posts for a while. Mostly because so much of your early stuff was almost incomprehensible. However, it's obvious that you've since become a valuable member of the community. Posts: 2945 | Registered: Apr 2000
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Ethics: No worries. Just because I don't support their lyfestyle, I don't hate them. I have friends who use drugs, I like them, just don't support their lifestyle.
I have to say though, your name is a very humourous oxymoron.
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I apologise if I misconstrued, but despite your protestations to the contrary it has seemed to me that many of your posts don't simply display a distaste for homosexual acts. Perhaps this was a result of your being "deliberately forceful."
I'll lay off... and apologise for being a prick.
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Sorry . . . I guess I'm the one who brought abortion into this . . . I agree that this isn't the place to discuss the morality of adoption per se, but discussing the validity of the Supreme Court's decision is, I think, totally appropriate as an example to be debated.
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EG, thank you for reading my post and especially for saying I've become a valuable member of HR. That really means a lot coming from someone here I respect so much. I dithered as to the wording of "extremely condescending" and "at times." Most of the time you display far more class than I ever will, as you've proven both times I've critized you. Arrogance is an ever-present danger for any people as intelligent as we both are. And my early posts were often bordering on incomprehensiblity, partly because I was trying to inject humor into every word and EVERY post, which doesn't work unless you're Bob Scopatz. I think Frisco or Lalo called me on it, but it took a few weeks for me to dial down the humor.
Several posters (you know who you are!) on this thread and the gay marriage thread were taking cheap shots and ad hominem attacks on Ryan, which is why I defended him. Not because I agreed with his positions. I agree, his stance on homosexuality is infuriating, but it is shared by millions of Christians and others. As long as he doesn't cross the lines of civil discourse, however, he's entitled to express his views. Attack the views, don't stoop to unwarranted assumptions and cheap shots, people. HR needs diversity, not a hive mind, right?
posted
Uhm, since we are talking about posting styles, may I lodge a complaint with you, Morbo? Your habit of ending most sentences with a line break makes your posts flow weirdly and is, to me, stylistically difficult to read. If I slow down it doesn't bother me much, but I usually scan the threads very quickly and when, if in a hurry, I get to a post that is formatted out of the norm, I tend to skip it. I don't know if I speak for more people than myself, but if you wish to increase the chances of your posts being fully read and appreciated by people of my sensitivities, you might perhaps consider changing to normal paragraphs .
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You're right: I do use too many line breaks. I didn't realize it was so distracting, and I'll try to watch that. Thanks for the constructive criticism, Tristan. Posts: 6316 | Registered: Jun 2003
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