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  • I am not sure how you reconcile this:

    a lot of what the US Supreme Court does is issue rulings on whether various laws are constitutional or not (unconstitutional laws are nullified), but the Constitution does not explicitly give the Court this power.

    with this [cornell.edu]:

    The judicial power [of the Supreme Court] shall extend to all cases, in law and equity, arising under this Constitution

    • Quite easily. :)

      It does not explicitly say anything about nullifying laws. It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.

      Or maybe I'm reading it differently than you.

      The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...

      If you read that sentence it as saying "The judicial

      • Quite easily. :)

        I don't think so.

        It does not explicitly say anything about nullifying laws.

        It's absolutely implicit.

        It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.

        I don't understand how this is interesting at all. If someone sues over whether a law is legal/Constitutional, that obviously falls under the Supreme Court's mandate. There is nothing excluding that (either explicitly or implicitly), and it is a "case arising under the Constitution," so it is therefore included in its explicit authority.

        If you read that sentence it as saying "The judicial power shall extend to " the following list "all cases...", "the laws of the United States", and " treaties made..." I guess I could see where you're coming from. I tend to read that instead as saying "The Judicial power shall extend to all cases arising under ... the laws of the United States".

        You're reading it wrong. :-) As Federalist 78 [federali.st] says:
        The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.


        Judicial review was understood as a part of the package, although -- as the following discussion in #78 makes clear -- our courts today have gone far beyond mere review and have actually taken the position of superiority to the legislature, which it never should have had.

        Still, even with the former reading, what exactly does "judicial power" over "laws" mean? It seems obvious that it would include interpretations of the wording of laws. But does it include the ability to decide that some laws are inconsistent with others?

        No, I don't think so. I do think it has the authority to decide cases where two statutes are conflicting, and this might have the subordinate result of a de facto ruling that one statute is above another; that's unavoidable. But they don't have the right to say one law is illegal because it conflicts with another (unless, of course, one law literally is higher than the other, such as in the case of the Constitution vs. legislated statute).

        I have to dig up some sources on this, but if you're one of those Original Intent people, the framers basically left the constitution vague about nullifying laws on purpose because they couldn't come to an agreement on whether to put it in or not. Ah, design decisions. :)

        No, I don't agree with that at all. As #78 shows (e.g., "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power") there was widespread agreement that the (at the time) proposed Constitution granted the power of nullification to the Supreme Court. The debate was primarily over whether this was wise, not whether the Constitution granted it.

        • First of all, let me make clear that my argument is not that the Court overstepped their authority in declaring that they could decide the constitutionality of laws. (And whether or not they've overstepped their authority today is an entirely different question.)

          It's absolutely implicit.

          How is anything implicit absolutely so? Are you asserting that it logically follows from that sentence?

          It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on i

          • How is anything implicit absolutely so? Are you asserting that it logically follows from that sentence?

            Yes, precisely.

            Because we're talking about whether the Supreme Court has the power to nullify a law on the basis that that law is inconsistent with the constitution.

            Right, but the conclusion is necessarily reached from the language. Whether it is explicitly stated is not relevant.

            There is nothing excluding that, but there is nothing explicitly including that either.

            Then it is therefore included. ALL CASE
            • Right, but the conclusion is necessarily reached from the language. Whether it is explicitly stated is not relevant.

              I tend to think that reaching conclusions is still a form of interpretation.

              And again, Hamilton is on my side, so you have to be far more convincing than saying you simply think it is not implied, because he said it was. :-)

              Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.

              and that the Constitution does not

              • I tend to think that reaching conclusions is still a form of interpretation.

                Given the laws of integers and base 10 and addition, is it an "interpretation" that 2+2=4?

                I think the language gives absolutely no room for any other interpretation.

                Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.

                Sure, though you are the one who brought up original intent.

                I assert that because constitutionality determination is a previous decision o
                • you are the one who brought up original intent.

                  I was foolish to bring up original intent. It appears my source was nothing more than a textbook [amazon.com] which has a section that presents some arguments for and against Judicial Review. An argument in support says

                  The Framers left juidical review out of the Constitution because they did not want to heighten controversy over Article III review, not because they opposed the practice.(p.59)

                  and the argument against that point is

                  The participants at the Constitutional Co

                  • Upon more research into the Council of Revision, I found this debate [teachingam...istory.org] but most of it seems to be about Executive plus Judicial review.

                • Given the laws of integers and base 10 and addition, is it an "interpretation" that 2+2=4?

                  Possibly. 2+2=4 is not axiomatic. However, keep in mind that English is a whole lot less precise. :)

                  I think the language gives absolutely no room for any other interpretation.

                  And I assert that the Supreme Court is required to actually make that interpretation.

        • I was going to say that the fact that reasonable people can disagree on this point means we need a body to interperet the language of the constution to settle the disagreement. A body like the Supreme Court.

          Of course, then you could legitimately challenge the premise that I'm a reasonable person. (Which makes sense, if I go around making incorrect claims all the time, who's to say I'm reasonable?)

          Then I'd have to point out people who disagreed with Marshall's decision in Marbury vs. Madison and you coul

          • You're wrong because you're stupid!
          • Sorry, couldn't resist that last one. :-) Still, I don't think there's significant room for disagreement on this. However, I would change my mind, if you produced contemporaneous writings (such as Anti-Federalist Papers?) that showed people who disagreed with it.

            Speaking of Marbury v. Madison [wikipedia.org], Federalist 78 is also cited there, as an example of Hamilton laying out the concept of judicial review as being a part of the proposed Constitution, and also quotes John Yoo saying, "[N]o scholar to date has identif
            • Would transcripts of the debate of the Constitutional Convention be sufficient? Or would you only accept an interpretation after the Constitution was finished being drafted?
              • Any contemporary who thought that the proposed Constitution (the one Hamilton wrote about, that was ratified) did not grant the power to overturn legislation that conflicted with the Constitution (should it be as part of a properly brought case before the court etc.).