US Constitution And Judicial Review

[nimble]

I read an interesting article today that claims from a strict constructionist view of the Constitution that the Supreme Court is not granted the power to rule things un-Constitutional, and not only is it not granted that power, but that power was instead to be granted to the executive branch through the veto power. The article argued that Washington considered the president's main function to be the watching of Congress and the States to make sure they didn't try to pass un-Constitutional bills, thus the veto power.

After reading this article I skimmed the Constitution until I got to Article III, which deals with the judicial branch's powers, and I found no clause granting them the power to overturn laws. I intend to investigate this further when I have a bit more time, maybe tomorrow, but I was wondering if anyone else had ever heard this argued or maybe knows the Constitution by heart and would have an answer or response for me. I just found that to be a bit shocking, since I consider judicial review to be pretty important and I thought it to be the norm for our country.

Thanks

Nimble

Edited October 8, 2005 by softwareNerd

[DavidOdden]

I read an interesting article today that claims from a strict constructionist view of the Constitution that the Supreme Court is not granted the power to rule things un-Constitutional, and not only is it not granted that power, but that power was instead to be granted to the executive branch through the veto power.

That's true: there is nothing at all in the Constitution which explicitly grants the power to judge a law, once made. This was decided in the case Marbury v. Madison.

[JMeganSnow]

David knows Everything!

[DavidOdden]

David knows Everything!

Whoah! I didn't know that!

[shakthig]

I read an interesting article today that claims from a strict constructionist view of the Constitution that the Supreme Court is not granted the power to rule things un-Constitutional, and not only is it not granted that power, but that power was instead to be granted to the executive branch through the veto power. The article argued that Washington considered the president's main function to be the watching of Congress and the States to make sure they didn't try to pass un-Constitutional bills, thus the veto power.

The following quote of Alan Keyes would be interesting in this regard -

Judicial review actually results from an argument--that is to say, a line of reasoning--that was first presented by Hamilton in Federalist 78, and then reiterated by Justice Marshall, Chief Justice Marshall, in Marbury vs. Madison, and it's very simple. Very simple line of reasoning. It goes like this: if I am a judge, I am sworn to uphold the Constitution. If a law comes before me that conflicts with the provisions of the Constitution, since the Constitution is the higher, more authoritative expression of the will of the people, I must follow the Constitution. I cannot follow elements of law that contradict it. So, in doing my duty under my oath, as a judge, I have got to follow the Constitution, because I am sworn to uphold it.

The full text can be read here -

http://www.renewamerica.us/archives/media/..._03_30liddy.htm

The article(which takes the form of a converstion) is pretty interesting because while Keyes argues in favour of judicial review of legislation(Striking down laws when the judiciary finds the to be unconstitutional) he also argues that the executive and legislative branches of government have the right (and obligation) to ignore judicial decisions which are unconstitutional.

[Evangelical Capitalist]

That's an interesting article, and I agree with the principle that Keyes is advocating, though I disagee vehemently with his application of it.

What he's talking about is called in some circles, "concurrent review." It consists of the idea that all three branches of government have the obligation to uphold the Constitution in their official actions. Some even extend this to the States, the Constitution being a compact between the States, "We the People" notwithstanding.

Where Keyes goes greivously wrong in his vigor to defend Jeb Bush's actions over Terri Schiavo is in alleging that the Governor (or the President or any other executive authority) can do anything he pleases regardless of the opinions of the other branches under the justification that it's consistent with his interpretation of the Constitution.

The Constitution is a limitation on government power. (Every constitution is. Government doesn't need a constitution to empower itself, it has guns with which to do that.) Under the principle of concurrent review, the government, i.e. the executive, representing the "acting" portion of the government, can take no action without the consent of the other branches. Likewise, the other branches can not force the executive to take any action which he deems unconstitutional. This does not mean that the executive cannot be legally restrained by the legislature or the judiciary, which is precisely where Keyes goes wrong. An unrestrained executive would be a dictator. We have "checks and balances," not dictatorship. Keyes argument is entirely inconsistent with that principle.

[Robspe]

The following quote of Alan Keyes would be interesting in this regard -

Judicial review actually results from an argument--that is to say, a line of reasoning--that was first presented by Hamilton in Federalist 78, and then reiterated by Justice Marshall, Chief Justice Marshall, in Marbury vs. Madison, and it's very simple. Very simple line of reasoning. It goes like this: if I am a judge, I am sworn to uphold the Constitution. If a law comes before me that conflicts with the provisions of the Constitution, since the Constitution is the higher, more authoritative expression of the will of the people, I must follow the Constitution. I cannot follow elements of law that contradict it. So, in doing my duty under my oath, as a judge, I have got to follow the Constitution, because I am sworn to uphold it.

The full text can be read here -

http://www.renewamerica.us/archives/media/..._03_30liddy.htm

The article(which takes the form of a converstion) is pretty interesting because while Keyes argues in favour of judicial review of legislation(Striking down laws when the judiciary finds the to be unconstitutional) he also argues that the executive and legislative branches of government have the right (and obligation) to ignore judicial decisions which are unconstitutional.

A little OT, but most people also don't realize that the Constitution doesn't specify the number of judges on the Supreme Court. That's left up to the Congress. So they could "pack" the Court, as FDR tried to do in the Thirties. Or, it could be reduced to one justice, I suppose, by not appointing new ones as old ones died. Wouldn't that shake things up?!

[Captain Nate]

A little OT, but most people also don't realize that the Constitution doesn't specify the number of judges on the Supreme Court.  That's left up to the Congress.  So they could "pack" the Court, as FDR tried to do in the Thirties.  Or, it could be reduced to one justice, I suppose, by not appointing new ones as old ones died.  Wouldn't that shake things up?!

Yes. It's how we got stuck with the New Deal. FDR scared the court into submission.

[Evangelical Capitalist]

Yes. It's how we got stuck with the New Deal. FDR scared the court into submission.

Whether or not that's the case, FDR wound up appointing something like 7 justices during his terms in office. His court-packing scheme turned out to be unnecessary.