Stories
Slash Boxes
Comments
NOTE: use Perl; is on undef hiatus. You can read content, but you can't post it. More info will be forthcoming forthcomingly.

All the Perl that's Practical to Extract and Report

The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
 Full
 Abbreviated
 Hidden
More | Login | Reply
Loading... please wait.
  • 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 arisi
        • 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 of the court, it will not neccessarily always be upheld. I guess you're arguing that it doesn't need to be, because it's the only reasonable conclusion one could get.

                I assert that it was true -- and was well-understood at the time -- that the power of judicial review belonged to the Court long before Marbury v. Madison, that this was only the first example of its use (recall also that Justice Marshall was personally trained in proper Constitutional interpretation by Hamilton's colleague in the writing of the Federalist Papers, James Madison).

                I say nothing about whether this will always be upheld. It *should* always be upheld, but the Court does not always follow the Constitution. And even conservative originalists admit to this. Judge Bork wrote:
                Almost all justices have agreed with Felix Frankfurter's observation that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." The obvious exception, of course, is that the nation has developed in ways that make some returns to original principles impossible. No judge of whatever disposition would, pace Senator Kennedy, plunge the nation into chaos by dismantling government as it exists today.

                That is, he is saying, even though the ultimate touchstone of Constitutionality is the Constitution itself, and even though much of government today is quite clearly unconstitutional (such as a federal minimum wage) ... they still wouldn't overturn it, because the consequences are too great.

                So whether our Supreme Court will continue with judicial review in the future, I won't guess. But I will assert, sans evidence to the contrary, that it was a part of the Constitution when it was written, debated, and ratified, long before Marshall asserted it in Marbury v. Madison.
                • 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.