Tal writes on the Debt discussion

This marks one of those moments where we agree even though we approach the topic from different political perspectives .I think there could easily be consensus to reform the judiciary .You will cite specific cases where we disagree . But the relevant point is an agreement that the jusdiciary has too much power... power that they were not granted by the Constitution.

SCOTUS has been out of control since Marbury V Madison . Judicial Review to the extent it has been exercised was a power grab by Chief Justice Marshall that for some strange reason neither Congress or the Executive challenged . The Constitution gave them no such power .In truth ;Marbury was a political decision by Marshall to stick it to Jefferson after the election of 1800.
The Marbury decision made the Judiciary an unequal more powerful branch of the government ,granting unto themselves the last word. To make matters worse ;the Constitution grants them a lifetime appointment (short of impeachment ) This effectively turned the unelected branch an oligarchy.The most political ,cultural and moral decisions affecting our lives have been removed from the people.

Here are the words of Jefferson on the issue :

"…the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

“A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”

“We already see the [judiciary] power, installed for life, responsible to no authority … advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions for the annihilation of constitutional State rights and the removal of every check, every counterpoise to the engulfing power of which themselves are to make a sovereign part.”

“To consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. … their power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided…its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. … When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough.”

“It has long been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary – an irresponsible body…working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.”



Alexander Hamilton wrote in Federalist 78 that the judiciary will always be the least dangerous branch of government because it has the least capacity to annoy or injure our constitutional rights. Would he think so today ? Anti-Federalist "Brutus" countered :
"There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."
ThisNation.com--The Antifederalist Papers No. 78-79
History confirmed Brutus' fears .

Hi Tom,

I guess your constitution is a legal document and as such it was inevitable that it became 'the playground' for lawyers.

I guess the problem is with language. The constitution is not something set in stone that will last unchanged throughout the ages. It contains words and as such doesn't provide some type of objective reality that actively mirrors the world. Words mean different things in different times.

It is a little bit like my Murdoch example in a previous post. Some people are very good at exploiting a niche.I guess that's what lawyers do best. Top lawyers probably do it better.

As to your question. "Should judges be the ultimate arbitrators of constitutional questions?" In the end the answer is probably, yes. The alternative would be for me to make constitutional decisions ( I have no legal training). Put it to popular vote? In this case the wisdom of the masses probably won't come up with anything worthwhile. It will just be another 'political football'. Who else are we going to leave it to?

Tut

Hello tom:

I'm glad you finally spelled out WHY you believe SCOUTS to BE unconstitutional in its own right.

Let's say I agree. What can we DO about it?

excon

For years the courts have been packed with politically friendly lawyers as judges to render not impartial decisions but friendly ones. Indeed the Supreme Court is now packed with Conservative Friendly judges who cater to rich interest, and as an example, the clear conflict of interest of Clarence Thomas deciding cases that his wife is involved in always to there favor. Sorry, but that burns my butt! Along with raising corporations to the level of individuals, and allowing them to have more influence in elections than my single vote does.

No wonder they don't feel the need to create jobs, or circulate cash to get the economy going because it's a better strategy to buy politicians, and pay lobbyists the bucks to get laws, and regulations changed in their own favor.

What to do about it, add some checks, and balances to the court, that gives them accountability to "we the people". In short, the ability to throw the bums out. Just like we can every election cycle if we so chose.

Power corrupts, absolute power corrupts absolutely, and the Supreme Court is corrupted by absolute power because it answers to no one, other than the biggest paycheck. If left unchecked, they will corrupt our Constitution. So the solution is to check them, and that's the amendment to the Constitution I advocate, and support. Anything less is to cede the power of the people to the few who don't have the Constitution, or the people as the highest priority.

Tal ,I bet you weren't saying that in the 60 + years when the court was packed with "liberal friendly judges" . But we agree that the court has too much power because of it's lifetime tenure.
I wouldn't put it before the electorate as Tut argues against . However ,I do believe that they would be a more equal branch of the government if their term came up for reconfirmation ;oh let's say every 10-12 years .
Or let them stick to their Constitutional mandate ,which is to arbitrate between 2 conflicting laws .

Tut ;the founders anticipated that and wrote in a clear path to amending the Constitution. It has happened 27 times since the founding . They also added a provision to hold a new convention to create many amendments and /or to replace the Constitution.
So that end is covered .
However ;since langugage does change over time ;the theory I and conservatives go by is that the Constitution should be intepreted in the 'original intent'. It means going far beyond the wording itself .It means that proper dilligence should be given to study the debates that went along with ratifications of the Constitution and the amendments.
That is why I frequently quote the published papers by Hamilton ,Madison and Jay called the 'Federalist Papers' . In those essays they explained in detail every clause of the Constitution.

Hi Tom,

I understand that many lawyers have emphasized the practical wisdom, truth and experience deeply embedded in the Constitution (original intent) . Basically I guess you are saying that language has a essence.

There can be a problem with any document which contains words, that are 'hard to pin down'. For example, truth, good, spirit, mind are just a few examples. The belief is that these words refer to actual objects; in fact they don't. Herein is the problem.We can put such words under a microscope, and we will have problems coming to an agreement over their 'essential' meaning within any age.If we take them out of their time frame we will have even greater problems.

Tut

No way did colonial man envision the changes and advances to come. I think he intended to make a framework for us to be guided by and added too. Its easy to subvert that intent by anyone and make arguments to explain any position, so the onus has to be on a vigilant, questioning, well informed citizenry, and in that regard we have to make sure the Supreme court is never above the level of the common man.

That would be too much like the royalty we sought so hard to avoid. I don't agree the courts of 60 years ago were liberal, but they did usher in fairness and equality, that the government backed up, and made happen against some opposition to social change that unlike now, helped many to stand as equals. Unless voting rights, and desegregation are liberal ideas.

This present court doesn't compare, and not because of ideology, per se, but cash, and power. I think both the right and the left have been divided as never before by this influence, and the real agenda is one neither likes.

The founders spent a considerable amt of time debating the meaning of the words . That is a matter of public record. If you are saying that the words are relative and have no meaning ,then why put them down in a legal document at all ? Why have a Constitution ? As I've already mentioned ,provisions were provided for changes so that the constitution could reflect changing values ,opinions ,even language etc. They placed no restrictions on how the Constitution could be amended .But until such time that it is changed ;the clauses and amendments should reflect the meaning the authors gave it.

Hi Tom,

Actually, I am arguing the opposite. The Constitution is actually full of meaning. I guess that is why we need lawyers to come up with an interpretation.

You are the historian not me. I know some American history, but not specific details. I am rather interested in Madison versus Marbury. Obviously it boils down to the separation of powers. This is a complex issue and there is no simple solution. Was Madison arguing for the position that it should be the Constitution that is the final arbitrator? Isn't there a problem when it comes to distinguishing common law and civil law?

Tut

Marbury V Madison was politics as tal says never happened here before.

Before he left office ;in the lame duck period ,John Adams attempted to packed the judiciary at any level he could under the Judiciary Act of 1801.

His Sec State John Marshall (who later as Chief Justice of the Supreme Court decided the case... no 'recusal ' due to conflict of interest.. ) was instrumental in the court packing scheme. However ;
Marshall failed to deliver the commissions to three new justices of the peace before Adams' term ended. One of the commissions was to go to William Marbury.

Adams' blood feud political rival Thomas Jefferson became President and refused to honor the commissions. Madison was Jefferson's Sec State and one of the leading authors of the Constitution.

The interesting thing is that the Marshall Court decided against Marbury's petitition (sorta ). Marbury had gone to the court to force Jefferson to comply with the appointment because Congress had given SCOTUS the power to order a writ of mandamus under the Judiciary Act of 1789 which could've forced Jefferson to comply . But in the decision ;the Court declared the Judiciary Act of 1789 unconstitutional . The Court decided that Marbury had a right to his commission;but the Court couldn't force the President's hand.

This was the 1st time an act of Congress was declared unconstitutional by SCOTUS .

Marshall wrote :

“lt is emphatically the province and duty of the judicial department to say what the law is.”... even as he argued that the Constitution was the supreme law of the land. There is nothing in Article 3 that gives them such power.

The irony is that Congress by law had constitutionally expanded the power of the judiciary . Marshall's ruling ,although limiting in this specific case, set the precident that established an imperial judiciary.

Hello again, tom:

That happened over 200 years ago... If it was sooo wrong, why hasn't it been fixed? Besides, we haven't done too badly over the last couple hundred years, have we? Yes, I know you don't like what you perceive the liberal court did, but you've got a firm grip on the court now. It even looks like you could solidify your gain after the next election.

This court hasn't reversed Roe, but it HAS created a political environment more to your liking since Citizens United and subsequent rulings.

Anyway, IF the power to decide what the law IS, is removed from them, then people like Rick Scott can violate his citizens civil rights at his whim, and there's nobody to stop him. There would be NO backstop to any of the more ridiculous, and clearly unconstitutional laws passed by the states and the congress.. How would you deal with them?

Finally, without the Imperial Judiciary, wouldn't we still have segregation? I think we would. For that reason ALONE, I like it the way it is - EVEN with that cheater Thomas.

excon

Wrong about segregation. That was a 14th Amendment violation .
That was outlawed and it was the court itself that codified Jim Crow before it reversed it.

If you want judicial review in the Constitution put it in via amendment . Just because it wasn't challenged doesn't mean it is right. There have been many court decisions that have subsequently been reversed. So you're claim that the court should have such powers is not demonstrated by the facts or past performance.
You and tal continue to point to cases you don't agree with and judges you think yield too much power ;and yet you say we should continue along this ridiculous path of an unelected ,appointed for life ,arbiter over the will of the people .

Hello again, tom:

I POINT to them, and while I don't like them, that's the way it IS. When it was our turn, the libs empowered the people... Now that it's your turn, you're empowering businessmen and the wealthy. It'll swing back.

Plus, I don't think I'm wrong about segregation... Brown v Board of Education ended it - just like that. If they DIDN'T have the power to do so, I say we'd STILL have segregation in the south. What WOULD have ended it OTHER than that decision?

excon

Just like it ended after Brown v Board .The Federal Government had the power to end it before Plessy . It would've ended sooner if not for the Plessy decision .

Hi again Tom,

I guess we could say that you are a common law country operating under a civil law system. I guess when it came to the separation of powers it was inevitable that the judiciary was going to become the final arbitrators.

Tut

I'm not opposed to judicial review. All I ask is that it get codified ;and that the judges become accountable to "we the people" (the ones who are supposed to be the final arbiters ) .

Hello again, tom:

The reason they have lifetime appointments is to FREE them from the politics of "being" accountable to anything OTHER than the Constitution... Aren't you a guy who wants them to read it as it's written? How can a justice do that if he knows he'll lose his job? You and I certainly don't agree what those simple words mean. In other words, the TOUGH decisions aren't popular.

Let me ask you again, IF SCOTUS had to answer for their decisions, do you think segregation EVER would have ended? I say it would NOT have.

excon

Hi Tom,


I agree

I guess that when it comes to common laws accountability is a real possibility. Laws can be show to be bad in principle. How this can be applied to civil procedures is beyond me. The problem is that civil matters don't have a precedent.

Good luck with it anyway.

Tut

So you approve of a lifetime appointed oligarchy making all the important decisions of the nation. Given the splits in the court that means that a single "swing" justice is the effective supreme dictator. That is too much power and anyone who understands the logic of the founding would be apalled at that arrangement .

Segregation was NOT the law of the land after the Civil War and integration of the black population was being enforced by the Federal Government . Blacks were part of the legislatures and Congress . Plessy codified Jim Crow ;but that was wrongly decided. There was no "state right" to violate the provisions of the 13 and 14 amendment .

There has to be a way for abuse, or perceived abuses to be reviewed, and dealt with accordingly. Just to keep them honest, and get some full disclosure.

But when the boss of a Justices wife comes before the court, you can't tell me that looks good. Or smells good.