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All the Perl that's Practical to Extract and Report

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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 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".

      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?

      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. :)

      • 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 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.).